Immigration Bill
Baroness Kennedy of Shaws Excerpts(11 years, 1 month ago)
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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(11 years, 2 months ago)
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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.
Immigration Bill
Baroness Kennedy of Shaws Excerpts(11 years, 3 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, my noble friend mentioned that I raised this issue at Second Reading with great concern about the consequences. As a result, I have received communications from a number of different, eminent international lawyers. One of them, Guy Goodwin-Gill, is a senior research fellow of All Souls, Oxford, Professor of International Refugee Law at the University of Oxford and a barrister. He and others take a very different view of this from that of the Government. The proposal to allow the Secretary of State for the Home Department to deprive a naturalised individual of his or her citizenship not only risks damaging the United Kingdom’s international relations, but also risks leading to breaches of international obligations and engaging the UK’s international responsibility. Moreover, deprivation of citizenship is not a viable alternative to the responsible prosecution of alleged criminal conduct. Citizenship is not a privilege, but a protected legal status. It is why, for example, the United States, Germany and other countries would not, under any circumstances, contemplate removal of citizenship. The answer to behaviour that we do not like and consider to be criminal is to prosecute it.
Deprivation, with all its consequences in the modern world, is equivalent to a penal sanction of the most serious kind, but imposed without a criminal trial, without a conviction, without close and open examination of the evidence, and without an effective opportunity of defence, contrary to the requirements of due process. From the perspective of international law, in particular, the re-introduction of previously repealed statutory provisions on deprivation resulting in statelessness is arguably inconsistent with Article 8(3) of the 1961 Convention on the Reduction of Statelessness. The deprivation of citizenship resulting in statelessness will engage the United Kingdom’s international responsibility where it violates the rights of other states. Just as my noble friend has asked, I also ask: what do other states make of our intention to do this? It is inconsistent with the United Kingdom’s other international obligations. As a matter of international law, the United Kingdom has no right to deport a person whom it has made stateless to any state which has not expressly agreed to admit the individual; nor does it have the right to refuse to readmit a former British citizen who has been deprived of his or her citizenship while present in another country. Deprivation of citizenship may engage a variety of European convention rights, and a person deprived of their British citizenship does not cease to be within the jurisdiction of the United Kingdom for the purposes of those rights.
Deprivation of citizenship is potentially inconsistent with obligations accepted by the United Kingdom under many different treaties dealing with terrorist acts, in particular, the obligations of investigation and prosecution in the fulfilment of which every other state party has a legal interest. Deprivation of citizenship will likely expose the conduct of the United Kingdom to close and critical scrutiny whenever a former British citizen seeks international protection from the United Nations High Commissioner for Refugees, or as a stateless person or convention refugee.
I wonder whether the Government have given proper consideration to the implications of this step. The proposal to allow the Home Secretary to deprive citizens of their status, even if it renders them stateless, is ill considered. Recent experience suggests that considerable wastage of public money is likely to result from attempts to defend the indefensible, for deprivation itself touches on just too many legal issues. Considered as an internal act, it is by no means clear what deprivation can achieve that the criminal law cannot. The criminal law is the proper process.
In addition, considerable harm will be caused to the United Kingdom’s international relations. The United Kingdom has no right and no power to require any other state to accept its outcasts and, as a matter of international law, it will be obliged to readmit them if no other state is prepared to allow them to remain. Likewise, and in so far as the UK seeks to export those who are alleged to have committed terrorist acts, it is likely to be in breach of many of those obligations which it has not only voluntarily undertaken, but which it has actively promoted around the world up to now, for dealing with international criminal conduct. We cannot speak with forked tongues on this.
Although the current state of international law may permit the deprivation of citizenship resulting in statelessness, at least in its internal form, certain limitations on this competence none the less follow when the act of deprivation takes on an external or extraterritorial dimension which, as we can see from the number of cases, is how we tend to apply it. We apply it to people who are abroad. In light of the above considerations, this implies among other things that no order of deprivation and no cancellation of passports or documents attesting to citizenship should be permitted with regard to any person not physically present in the United Kingdom, but that is precisely how the Government intend to use it. No person deprived of their British citizenship should be removed or threatened with removal unless another state has formally agreed to admit that person and the person concerned is willing to go to that state. These are the problems that faced President Obama with regard to some of the persons being held in Guantanamo Bay.
No order of deprivation should be made unless full account has been taken of family considerations, including the best interests of any children and their status in the United Kingdom. Due process requires an effective remedy and meaningful review of any order of deprivation. In particular, this requires that an appeal or review has suspensive effect, particularly in view of the concerns which courts have expressed regarding out-of-country appeals.
Lord Taylor of Holbeach
My Lords, this has been a very thorough debate on a clause which, as the noble Lord said, we owe it to discuss thoroughly.
I start by adding some further perspective to the debate on the deprivation of citizenship. The measures in the Bill to deprive someone of citizenship can be used only against someone who has chosen, as an adult—not as a child—to naturalise as a British citizen. When choosing to seek British nationality they will have taken an oath, or sworn allegiance, to Her Majesty, and pledged their loyalty to this country. Despite this—
Baroness Kennedy of The Shaws
I know it is early in the Minister’s answer, but can I be clear: is he saying that this will not apply to persons who were naturalised when they were under 18?
Lord Taylor of Holbeach
It will not apply to people under 18. Such people are not able to apply for naturalisation; they can gain British citizenship through registration—in effect, through their parents’ presence in this country. Rather, this amendment to the existing law applies to people who have sought naturalisation. As I say, they pledge their loyalty to this country. Despite this, a small number of these individuals have chosen by their conduct to betray the values and laws of their adopted country. Therefore, in my view, it is only right that the Home Secretary can, in seeking to protect the security of the UK, deprive them of that adopted citizenship, and expect them to reacquire, or to acquire, their former citizenship of another country.
I remind the Committee that the Government already have the powers to deprive citizenship. Such powers have been operated by successive Governments. Listening to the debate at certain times, I got the feeling that the argument was that no Government should have the power to deprive citizenship. However, the clear argument in these amendments is not on that case but on whether the exceptional case of statelessness should be an exclusion from the Government’s powers in this pre-existing legislation.
These powers have their origins in legislation dating back to the First World War, when provision was made for the revocation of citizenship if a naturalised person was suspected of treasonable activities. Section 40 of the British Nationality Act 1981, which has been cited, allows the Home Secretary to deprive British citizenship in two scenarios. The noble Baroness, Lady Smith of Basildon, mentioned them. The first is where the person acquired it using fraud, false representations or concealment of a material fact, which essentially means that they used deception to obtain citizenship for which they were not eligible. In these cases a person may be left stateless. Are noble Lords arguing that they should not be deprived of citizenship in such cases?
The second scenario is where the Home Secretary,
“is satisfied that deprivation is conducive to the public good”,
and that the person would not be left stateless as a result. It is the second of these powers that Clause 60 seeks to amend by returning our position on deprivation action to that which existed as recently as 2003. These powers are provided for and permitted under international law by virtue of the UK’s declaration to the 1961 UN Convention on the Reduction of Statelessness and the domestic legislation that existed at that time. These powers are provided for and permitted under international law.
Immigration Bill
Baroness Kennedy of Shaws Excerpts(11 years, 4 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, my name was mistakenly left off the speakers list, although I had put it down last week. I understand that the noble Baroness, Lady Tonge, has withdrawn from the debate and the government Chief Whip has permitted me to step into her slot. I hope that your Lordships will consent to that.
I have been glad to see that we have looked at this issue in the round and recognised that the impact of poor immigration reform has a very real impact on the future of our country. Like others, I wish to emphasise the incredible impact that it has if we lose whole generations of students who choose to go to other nations where they are not facing the kind of hurdles and hostilities that seem to them to be presented if they apply to come to a British university. The consequence is that we lose important relationships—friends who take on leading roles in their countries, not just in politics but in professions, education and all manner of roles. We lose all this social and diplomatic capital as well as any financial benefit. It is short-sighted of government not to recognise that.
However, I wanted to concentrate our minds a little on a conflation that takes place. We all speak proudly of our tradition on asylum and say that we provide a safe haven for those who have been persecuted; yet, at the same time, we often confuse their position with that of economic migrants who may have come on a visa to visit, overstay and become illegal. Their position should be considered differently, because most of my work in the immigration field has been with people who have sought asylum, sometimes for different reasons, and their asylum application has failed—not always because they have not been persecuted but simply because providing proof has become difficult.
It is important that this House knows that this country detains more people under immigration powers than any other country in Europe, apart from Greece. While Greece detains more, it does so for much shorter periods and at the point when people arrive at the border. We are unique in that we detain indefinitely. We do not have a cap on detention, as other countries do. That experience of indefinite detention causes profound mental anguish to the individuals concerned. We use detention in ways that cause enormous distress. People who have often already endured horrors beyond our imagining end up in custody. My experience is particularly with women who have claimed asylum and then been detained. Their suffering is a disgraceful indictment of our system. Lots of detained people show signs of mental health problems during detention. We cannot remove them because their homeland is unsafe, they have no travel papers or there is some other reason. Many of the women have experienced sexual violation and degradation of the most terrible kind, even if, because of a lack of corroboration, they have been unable to cross the barrier of the culture of disbelief that exists within the UK Border Agency.
The organisation Detention Action has reported on long-term detainees and found that ultimately only a third were moved or deported because, in the end, they manage to persuade the authorities that they should be allowed to stay. However, that happens often after years, or certainly many months, in detention. I am afraid that the United Kingdom is one of the few countries in Europe that has no time limit on detention. One thing that is a source of surprise to me is that Sweden manages to negotiate the voluntary departure of 82% of refused asylum seekers. Why is that possible there but not here? We exacerbate the situation of vulnerable people if we remove bail, as is intended in the Bill.
I strongly urge the Minister and Members of this House to read a report called Detained, produced by Women for Refugee Women, an organisation that I know well. Read it and your hearts will break. So many of these women have experienced terrible persecution, yet the process they face in this country is neither fair nor just. We take a pride in ourselves as being protectors of liberty and believers in the rule of law. Unfortunately, we do not see that happening in many of these cases. The stories in that report are hair-raising. I feel strongly that any woman who is claiming that she has experienced rape, sexual violence or other forms of torture of a sexual nature should not be in detention. Where these issues are raised in a claim, the woman should be released to continue her claim in the community. There are groups which will provide the kind of support that they need. Certainly, no men should be employed in roles in places such as Yarl’s Wood where they come into contact with women who have experienced this kind of abuse. Just think how hard it is for traumatised women who have experienced multiple rape, often at the hands of men in uniforms, to then be surrounded by men in uniforms.
It should go without saying that pregnant women should not be detained. If a woman must be detained prior to removal, it should be for the shortest possible time after alternatives to detention have been meaningfully considered and explored. I urge on this House that we should be arguing in the debates on this Bill, and in Committee, for the introduction of a 28-day cap on any detention, after which people would have to be released into the community to continue their claim. The whole system is a bit of a farce. Proper legal advice has to be available to people who are seeking to make asylum applications, and I am fearful of the implications if that is not available.
We pretend that we have a fast-track system. That is not just an abuse of the human beings involved; it is an abuse of the English language—fast it is not. All we hear are claims about abuses of the system and the high numbers of appeals. Others have said, and I repeat, that the reason for the high number of appeals has been that the quality of decision-making at first instance is disgracefully poor. The high success level on appeal is not because we have a simpering judiciary who are all soft touches; it is actually because they consider these appeals and find in favour of the asylum seekers because they find that their cases have real and genuine merit.
Those who hyperventilate about criminals being allowed to resist deportation because of Article 8 of the European Convention on Human Rights fail to realise that the numbers who succeed on that ground are very few indeed. It is perfectly reasonable to deport serious offenders who come from other parts of the world, but it is also important to consider how long a man or woman has lived in this country because we are sometimes talking about people who came to live here as children and then talking about deporting them to places that they do not even know and where they do not speak the language. We are also talking about people who have formed relationships; sometimes whole families would be torn apart by deportation orders or forced into upheaval if they are to go to the place to which the father of a family is being deported. Wives and children have to accept what is really deportation of them, too, when they have done no wrong. Children also have rights, and we must bear that in mind when we are considering these issues. This whole business of saying that we should almost automatically deport people flies in the face of the things that we should be proud of here in Britain—proper due process, individual consideration of cases and judicial discretion being applied.
Finally, I want to deal with the disgraceful decision to remove citizenship from those who have received British nationality. I know that the story is that only those who are a threat to national security will be endangered, so the rest of us can sleep easy, and that those who have acquired citizenship can sleep easy, because only people who have become British citizens will be affected. I ask those noble Lords who have become British citizens to think hard about what this means. We are told that it will rarely mean being rendered stateless. I want us to think about statelessness. This was a real issue after World War 2: the notion that someone could wander the earth without nationality and lose the protections that come with national identity. Why does it matter? It is because if we are abroad and some desperate situation befalls us we can call upon the help of our embassies. We can insist on our rights being protected. Without such assistance, who knows what could happen to us?
I will tell you what can happen. I have been acting for someone who had his citizenship removed 18 months ago while he was in Somalia, where his grandmother lives. His parents received this information in the post then, in a phone call, they were told to inform their son that he had 28 days to appeal. Making phone calls to Somalia is not very easy. The claim was that he was now a threat to national security: when asked how they knew this, no help was forthcoming. So we have to conjecture that the Government has somehow become privy to shared intelligence. This is unlikely to have been done by the Somalians; more likely by American intelligence. There is no embassy functioning in Somalia because it is in such chaos, so he was advised by his family, having received advice from the border agent who phoned them, to head for somewhere where he might be able to access consular support to lodge an appeal. He crossed the border into Djibouti and, blow me, was picked up by the secret police there. Could it be that locational intelligence came from the telephone contact with his parents? He was then thrown into jail, interrogated up hill and down dale. When asked his nationality, he said he was British. The guards returned to inform him that they were sorry but he was not being claimed by the British. He was no longer British: we had washed our hands of him. Having been interrogated by the Djibouti police, he was handed over to the United States security services present there. He was interrogated further, put on plane, a hood put over his head and flown to the United States of America. There was no extradition procedure; no due process in any court; no disclosure of the reasons for any of this; nothing. That is what happens when you are rendered stateless.
In this new world, where is law? Where is the rule of law of which we are so proud? No American citizen can have their citizenship removed, ever. We have no publicly available evidence as to what my client is supposed to have planned or done. Some countries do not allow dual nationality and Somalia was one of them. Since this happened to my client, that has now been changed. However, just think about it: he is a British citizen who has lived here since he was a tiny child. My client was rendered stateless when his citizenship was removed and Britain made it possible for a whole set of lawlessness and serious abuses of human rights to follow. It does not matter to me, at the moment, whether he is a threat to national security. What should concern this House is the removal of legal protections and safeguards, which is what statelessness means.
I am ashamed that we have sunk to this and will certainly be opposing aspects of the Bill. I hope the Minister will listen carefully, because we do have certain proud traditions in this country; we do offer asylum to people in need of protection; we do believe that people should be brought before courts if they have done things that are wrong. We do not believe in putting hoods on people’s heads, seizing them and transporting them to other places without any kind of court process. That is not what Britain stands for. That is not what we should allow. That is what statelessness means.
Anti-social Behaviour, Crime and Policing Bill
Baroness Kennedy of Shaws Excerpts(11 years, 5 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, I, too, support the amendment. I have had reservations about the use of the power to stop and search without having reasonable suspicion. I think it lends itself to a certain amount of abuse and undermines relations with minority communities. I know this because of cases that I have done and I have heard this point expressed frequently by families in those minority communities.
The amendment raises the issue of stopping and searching and then going further. It involves more intrusive powers than simply stopping and searching. Often stopping and searching is used—I think the House should know this—as a way of recruiting informants. It does not very often produce a case against anybody but it provides opportunities for those involved in the security services to have a word with young men and to see whether they are likely to be of assistance and might be recruited as informants.
The concern that we have with this amendment is about the facility that is open to the powers that be at the airports and ports and wherever people are stopped to take computers and clone their contents. That should involve some reasonable suspicion before it is done. We should be able to move to that higher threshold of an officer being able to justify why that is being done. It would be very rare that it would be done without some explanation by an officer as to why they had made the decision to retain the content of mobile phones or whatever it is. This is another of those steps of intruding into the lives of citizens. We should be very anxious that this is not done without officers knowing that they will have to give some account of why they have sought to do this. That is not expecting too much of those who are at the borders and who are providing us with this kind of protection.
That is why the amendment has been put together. We are talking about the next stage. I do not believe officers usually move to that next stage without their having reasonable suspicion and without therefore being able to give an explanation as to why they need the extra powers that are involved in this new legislation.
Lord Hope of Craighead
My Lords, I put down my name in support of this amendment for the purpose of drawing attention to a case decided by the Supreme Court in October 2013. It was not mentioned or discussed in the report of the Joint Committee on Human Rights, but it has a bearing on this issue in connection with the amendment moved by my noble friend Lord Pannick. Before I do that, I should like to express my appreciation of the amendments tabled by the Minister in relation to the protection of people who are detained and also the timetable which is set out in the amendments.
I had occasion to look at this very closely in a case from Scotland following on a decision by the European Court of Human Rights in Strasbourg in a case called Salduz. It is clear that the amendments which the Minister has tabled are necessary in order to meet the requirements of the convention for the protection of people who are detained, in particular the right to consult a solicitor. I appreciate the careful way in which that problem has been addressed.
As for the timetable, it is appropriate that this should be in the Bill. In 1980 a provision was introduced in Scotland to give the police the power to detain somebody prior to arrest. In that provision, the timetable was set out. It had to be amended in the light of recent developments following the case of Salduz, but again the timetable was in the Bill. I believe that, for the protection of the subject, that is where it should be, so I welcome the way in which these amendments have been framed.
In the Supreme Court, the case R v Gul was concerned with the definition of terrorism, which is set out in Section 1 of the relevant Act, and the concerns expressed about the breadth of it. Terrorism, as defined in that, has a succession of various acts. People’s perception of what amounts to terrorism can vary according to what their perception is of what is going on and where these activities are being conducted. It is not necessary to discuss that issue today, but it has a bearing on what may be passing through the mind of the port officer who has the power to detain and on the need for some protection of the subject because of the way in which that power may be exercised.
I should declare an interest as I participated in that judgment and was particularly concerned about this issue in our discussions. At the end of the judgment, in paragraph 64, the Supreme Court noted that,
“under Schedule 7 to the 2000 Act the power to stop, question and detain in port and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting”,
which is of course the whole point to which the amendment draws attention. Although the court went on to add that it was not concerned with that issue in that appeal, the last sentence of the judgment reads:
“Detention of the kind provided for in the schedule represents the possibility of serious invasions of personal liberty”.
It is worth bearing in mind in support of the point that has been made that that has been a concern expressed by the Supreme Court in addition to others.
The noble Lord, Lord Pannick, was kind enough to mention what I said in the case of O’Hara, which was the first judgment I ever delivered in this House many years ago. The test which I set out, and which has been recognised, is not particularly exacting. It is partly subjective and partly objective. The subjective part is important because it looks only to what the officer says was passing through his mind at the time. The objective part is that somebody else stands back, takes what was passing through the officer’s mind at the time he was exercising his judgment and asks the question “Did that justify what he did?” That was how the power given to the police was expressed. It does not set a particularly high standard, but it is a protection. It is that protection which is absent at the moment and which I respectfully suggest is in need of being written into the Bill to meet the concerns that have been expressed by various people, including the Supreme Court.
Anti-social Behaviour, Crime and Policing Bill
Baroness Kennedy of Shaws Excerpts(11 years, 6 months ago)
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Baroness Hamwee
My Lords, in moving Amendment 56YJ I will speak also to Amendment 56YK. I also have Amendment 100A in this group, which is a consequential amendment. The whole of this group deals with Schedule 8, which is Schedule 7—port and border controls—in the previous legislation. My amendments have come up as a curtain raiser, though in this debate they are probably more of an epilogue. They relate to future possible action rather than to anything that might happen immediately, as would other actions flowing, in most cases, from the work of the JCHR. I am not suggesting that noble Lords who are moving and speaking to them are merely acting as mouthpieces—I know that that is not the case.
My noble friend Lord Lester is unwell and very sorry not to be here to speak to amendments in his name and to which he has added his name; my noble friend Lord Avebury has his instructions. I do not want to make a Second Reading speech at this point—perhaps speeches on these issues will be longer on Report—but I will make some general remarks. I acknowledge that the Government have moved forward a little on the relaxing of the arrangements to which this schedule applies, but like others I am eager for more.
I was interested in some of the comments that the Government included in their publication responding to the response to the review of the operation of Schedule 7. We do not have the responses published, but there are some interesting and telling comments. A self-declared police officer says:
“Schedule 7 should also incorporate a clear commitment and implementation process to the Equality Act 2010 general duty of ‘fostering good relations’”.
There are comments about,
“More tactful or less intimidating examinations”.
The report says of the community engagement events which the Government undertook that,
“The conduct of examinations was raised repeatedly”.
The Equality and Human Rights Commission commented at length on the lawfulness of stopping without suspicion. It said that,
“there should be no power to detain and question for more than 1 hour”,
on the basis that if an officer cannot articulate suspicion after 30 minutes of questions, he certainly should not detain for up to nine hours.
The Government asked whether respondents had any personal experience of being stopped and detained. I note that the proportion of those who said that,
“Schedule 7 powers are unfair, too wide ranging and should be curtailed”,
was considerably higher than the proportion who said they had personal experience. Even if you add the “prefer not to say” responses, it is still a higher proportion.
I was also interested to see the advice to examining officers following the recent case about,
“the right to consult a solicitor in private, in person and at any time during the period of detention”.
I know of a man who was detained but did not exercise that right because he was told by the officer who detained him that this was bound to lead to a delay, meaning that his wife and his elderly, infirm mother, with whom he was travelling, would be left even longer not knowing what was going on—a practice that I hope never to hear of again. Clearly, training in this is an issue.
Of course, my underlying point is about the balance between protection and security, and individual liberty, some of which is about what the Government can do through officers and some of which is about safeguards written into the legislation.
My amendments anticipate what we might be seeking if this debate were following the report by the independent reviewer of terrorism legislation when we know the outcome of the Miranda case, but I have picked up on his evidence to the recent Home Affairs Select Committee inquiry into this. Amendment 56YJ picks up two of his recommendations, 4 and 7, on the introduction of safeguards in respect of legally privileged material and on a bar to the use in a criminal trial of admissions made in the circumstances of such a detention.
Amendment 56YK shows that I am ever the optimist. I would never expect wording such as this to be used in legislation, but we are only in Committee. It seeks assurances from the Government about following through on—although I would say, for the purposes of the debate, looking seriously at—recommendations made by the independent reviewer following the Miranda case. I am sure that my noble friend the Minister will give assurances about that. I remain optimistic but also vigilant. As I said, Amendment 100A is consequential. I beg to move.
Baroness Kennedy of The Shaws (Lab)
My Lords, I will speak to Amendments 57 to 64. It is important to consider the backdrop here. Schedule 7 of the Terrorism Act 2000 is a highly intrusive police stopping power and it operates outside the normal regulatory framework that covers other police powers of stop and search.
Under Schedule 7, individuals are stopped and they are not under arrest but they are examined for up to nine hours, under the current arrangements, where they can be questioned, searched and have their belongings searched; they can be strip-searched; and they can have samples of their biometric data, including their DNA and fingerprints, taken from them, regardless of the outcome of the encounter and in the absence of a lawyer. People are stopped under it and are obliged to co-operate or face arrest, a period of imprisonment or a fine for any refusal. In addition, there is no right to compensation or assistance in rearranging any flights or other transportation that they might have missed as a result of this examination or detention. It is important to see just how extraordinary these powers are.
Recent research has shown that in 2011-12—the examination of this material has only just been encapsulated in a report—63,902 stops were carried out under Schedule 7. Of these, 2,240 lasted more than an hour and 680, which is less than 1%, resulted in a detention. Although no information has been provided on the number of people convicted, and on what charges, there were just 10 terrorism-related convictions between 2009 and 2012. I have been involved in most of the cases and can tell you that none was as a result of a stop at an airport or any port. We have no convictions based on these stops.
Baroness Kennedy of The Shaws
My Lords, before the Minister rises, perhaps I may indicate, as I did not specifically mention it, that I, too, am urging that the threshold of reasonable suspicion should be the standard before downloading, retaining and copying material on electronic devices of any kind. Even if the Government do not accept the amendment on stopping—that there should be reasonable suspicion at that point—at the very least we should move on to reasonable suspicion before we start taking people’s devices and entering into private material and retaining it.
Baroness Kennedy of The Shaws
My Lords, I thank the Minister for his very considered response to the matters that have been raised. I am grateful to him for indicating that further thought will be given to some of the matters that have been part of the debate here. I know that there will be no movement on certain things, but that there might be some movement on others. On that basis, I will not press my amendment.
Baroness Hamwee
My Lords, I am extremely grateful to my noble friend for his very helpful response and I am glad that there will be further opportunity to discuss these things. He has given some important assurances on a number of points. My amendment 56YK was really rather tongue-in-cheek, of course. It was also a bit of a nod to my honourable friend the Member for Cambridge, who had it down in the Commons but did not really manage to speak to it. I would not subcontract such matters, but the assurances of further consideration are very helpful to hear. I have never doubted the very serious way in which the Government are considering this.
A number of noble Lords will want to take part in discussions of this on Report. In particular, the noble and learned Lord, Lord Lloyd of Berwick, was not able to stay long enough this afternoon, and I am sure that my noble friend Lord Lester will be back to discuss it. I think that I can assure the Committee that there will be a pretty substantial debate next time round. Most importantly, we will be looking at where the Government’s thinking is going before we come back onto the Floor of the House. There are clearly very important discussions to be had. On that basis, I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Kennedy of Shaws Excerpts(11 years, 8 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, the Bill sailed through the other place without much fuss, but I am glad to see that there has been a bit of fuss here with regard to some of the changes advocated. I, too, welcome the noble Lord, Lord Paddick, to this House and congratulate him on his speech. I hope that in future he will not be as restrained as he has been today and that he will join us in examining the Bill with great care, and possibly even criticism.
I have always had very deep reservations about the ASBO because there are plenty of laws and by-laws that deal with real anti-social behaviour: criminal damage charges, breach of the peace, vandalism, drunk and disorderly, insulting words and behaviour—there are lists of crimes that can deal with the sort of behaviour we are talking about. I have always felt that it was a measure introduced to compensate for inadequate policing, and that good community policing should deal with anti-social behaviour under existing law. However, politicians always want to reach for new ways of restricting liberty. There was a particular temptation, encouraged by the police, that the lowering of the standards of proof would be a good way forward. We created a hybrid in law, a legal development that should have caused us much greater concern.
However, I have real unease about its replacement. Some aspects of it may seem to be an improvement but there is a real problem when you have something that is so ill-defined. At least with the ASBO as created by Labour the law required you to have caused or been likely to cause harassment, alarm or distress, whereas this new law says that you just need to be capable of causing nuisance or annoyance. This House is full of people capable of causing nuisance or annoyance, and long may it be so.
I am therefore very concerned about this new invention, and I am not sure that it is a very real improvement. What is even worse is that the test will be that the police think that the injunction is just and convenient, and that it will be on the balance of probabilities whether a person might be a nuisance or not. The conception of the provision is flawed and I hope that we will test it hard in this House.
I wish to respond to the noble and learned Lord, Lord Brown, who gave some credence to the idea in Clause 151, which I think is totally disreputable and contrary to the high standards that we should be proud of in our common law. The noble Baroness, Lady O’Loan, described it well. Quietly and in measured tones she made a powerful speech about the real problems with this clause. I acted in the Guildford Four appeal. I had colleagues who acted in the case of the Birmingham Six. I chaired an inquiry into the sudden infant death cases involving young mothers convicted of killing their babies and who were ultimately acquitted after it was clear that there had been miscarriages of justice. I acted for a woman who was convicted and spent 11 years in prison for causing the death by arson of two people, and it became clear that she was totally innocent. There was something I always remember about acting in those cases. After the Irish miscarriages of justice—those mentioned by the noble Baroness, Lady O’Loan: the Maguires, the Birmingham Six and so on—the senior judiciary ran around the Inns of Court insisting that the defendants were probably all really guilty, despite the fact that they had had the hell beaten out of them by the police. Lord Denning disgraced himself by suggesting that it was a vista that was too terrible to imagine that the arm of the state might have behaved in such bad ways. Members of the judiciary found it very hard because they had been in their own way at fault due to the ways in which they had allowed those miscarriages of justice to take place.
Miscarriages of justice are something terrible in our system. Happily they happen rarely but when they do they are a source of shame. When people seek compensation it does not matter whether we think that they may in fact be guilty. The point of compensation is to remind the state of its responsibility to hold those who act for it to the highest standards. That is the purpose of taking compensation out of the state’s coffers—to make sure that we do not let it happen too easily. That is why we, constitutionally here in this House, have to maintain very high standards when it comes to the whole issue of criminal justice. I therefore remind the noble and learned Lord, Lord Brown, that there are good reasons in place for saying that when someone is acquitted ultimately after it has been shown there has been a miscarriage of justice, particularly because of police bad behaviour, it is right that that person should be compensated because the state has to hang its head in shame. That is the purpose of compensation.
I move on to Schedule 7 of the Terrorism Act, which is also dealt with in the Bill. It introduces a number of other factors. Many of the changes are designed to rein in the powers available to police officers and other authorities. That is a good thing. However, what remains is the exceptionally broad discretion that allows for individuals to be stopped for no good reason. That should be a cause of concern to us as civil libertarians. In our legal system the norm is that the police should stop and search people only when there is a reasonable suspicion that they have committed a crime or might be about to do so. Under this proposed law, people can be stopped whether or not any grounds exist for suspecting that they may have been involved in terrorist activity. There does not even need to be a suspicion. It is almost as though everyone becomes a suspect and so you are stopped in order to rule yourself out. It is rather like that business of having to show that you are really innocent. I ask the Minister why this extraordinary power is deemed justifiable. Of course we are seeking to deal with terrorism, and that is an important and challenging problem for our society, but maintaining high standards in the law is one of the best ways of countering the insult and assault made by terrorism. This is a break from the common-law principle and is not just about an abuse of human rights.
The powers will continue to allow the seizure, copying and retention of significant personal data when personal electronic devices such as smart phones are seized without justification. Phones and computers can be completely cloned by the authorities without any reason being forthcoming at all; it can simply be random. We should be concerned about that. These powers were brought into particular disrepute because of the detention recently of David Miranda, the partner of the Guardian journalist responsible for many of the Snowden articles about the surveillance activities of agencies of the state.
The Government have reduced the length of time that a person can be detained at an airport for questioning from nine to six hours and I welcome that reduction. However, I encourage the Government to think harder and to consider reducing it possibly to three hours—a more reasonable period of detention at an airport.
The operation of Schedule 7 has been a consistent cause for concern for many and the subject of real concern for the Equality and Human Rights Commission, because the use of these powers has serious implications for equality and human rights and because it is having particular impact on people from ethnic minorities. The effect of that discrimination really does not help us to gather intelligence and deal with the threat of terrorism.
There are many things in this Bill that I think should be a cause of concern to this House. It is about lowering standards where standards in fact should be maintained, because that is what makes our legal system—and this country—great.
Crime and Courts Bill [HL]
Baroness Kennedy of Shaws Excerpts(12 years, 3 months ago)
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Baroness Kennedy of The Shaws
My Lords, I support the amendments and welcome the framework agreed by the parties. It is not perfect Leveson, but it is about 80% or 90% Leveson. In fact, the 10% to 20% that is not Leveson is a compromise in favour of the press, and we should be clear about that. It cheers my heart to hear those who have absolutely railed against the Human Rights Act, the European Convention on Human Rights and the court in Strasbourg suddenly praying in aid that great wealth of rights law, now that those people are confronted with the possibility that the press might have to be properly regulated.
First and foremost, only a week ago last Monday night, we created an entrenchment clause to protect the charter from meddling from behind closed doors by politicians, privy counsellors and Ministers. It was a way of using law to protect press freedom; indeed, I hope the Defamation Act will do so, too. The other way in which we can protect press freedom is by returning to high ethical standards. That is what is forgotten by those who hyperventilate about the great horrors of a regulatory system. It beggars belief that the noble Lord, Lord Black, who sat on the PCC for years and was basically hugger-mugger with those who were not really interested in what was happening to the victims of press excesses, now speaks about the “chilling effect” of this regulatory framework.
The costs element in this new arrangement is an important aspect of the Leveson incentives and is at the heart of the matter. The problem with the PCC was always that it had no teeth, and one had to find a way of dealing with that. However, as for the business of exemplary damages, perhaps we should make it clear that they would be used only in the most exceptional circumstances where the most egregious conduct took place. Almost invariably, it would go hand in hand with criminality of some kind. The criminality can be dealt with in some ways, but we know that the civil and defamation courts should have at their disposal some way of registering the horror of what happens to victims.
Noble Lords should have in mind circumstances such as when medical information has found its way into the hands of journalists that discloses, for example, that a woman has had an abortion, that someone has had psychiatric treatment, or that someone has a disease such as Huntington’s chorea that will manifest itself at a certain point in their lives. How dare the media expose such information? It is right that the courts should be able to respond appropriately when such things are done. We know that, except in exceptional circumstances, they are going to be dealing only with those who refuse to sign up to being part of this regulatory framework. This hyperventilation about exemplary damages is yet another manifestation of the huffing and puffing that we have seen in the press recently about the Rubicon being crossed and the end of freedom of the press as we have known it for hundreds of years, when the reality is far from that.
This is a moment for this House to reflect on the fact that over the past few months, while Lord Leveson was conducting his hearings and since he reported, there have been regular polls, and every poll conducted with the public showed that they want to see a proper regulatory framework. Indeed, all the polling indicates that the public support Lord Leveson’s report. More recently, as agreement has been reached across parties this week to create the framework that we are discussing tonight, all the polling indicates that the public want something of this sort to happen. So we should welcome it.
I am a human rights lawyer who believes strenuously in the freedom of the press, but I also have seen the horror of the impact on victims. They are not celebrities and the famous, but ordinary people. We in this House have to bear them in mind. That is what this framework seeks to do. I, like others, have concerns. I am worried about who will be given immunity and believe that we still need careful thought about who is covered by the immunities that we are talking about. I, like the noble Lord, Lord Skidelsky, want reassurances about freedom of information applying to these processes. However, we in this House should welcome the fact that somehow we are going to move forward on this and that we are not going to say that it is business as usual. Business as usual is not good enough.
Lord Phillips of Sudbury
My Lords, I declare an interest as having been for a few years a member of the appointments commission of the Press Complaints Commission and for 10 years on the Scott Trust, which owns the Guardian, the Observer and other newspapers.
I congratulate the three main parties and their leaders on coming to an agreement over what must surely be as difficult a set of issues as one could devise. No one in this House is mindless of the fundamental importance of freedom of the press in all its guises. Having said that, I am afraid that I reject the hypothesis very eloquently put forward by the noble Lord, Lord Black, that anything by way of control of the press is beyond the pale. The measures that the three leaders of the three main parties came to agreement on are profoundly sensible and, I believe, modest, and I think they deserve support.
I do not say that because the British public are expecting it. There are occasions when this House has to stand against the vast majority of the public if in all conscience we believe that they are wrong. We have done that many times in our history. However, I do not think that this is one of those times. This it not the thin end of the wedge, as is constantly said, because we will all be on our guard over the next few years to see whether what we intended comes about, and whether what we did not intend comes about. I have no doubt that the overwhelming sense, in this place and the other place, is such that if our hopes and expectations are not realised, we will do something about it, and that will be to protect the freedom of the press, not to grind away at that freedom.
I will make a couple of quick points. The first is that you could not have a more modest provision of exemplary damages than you have in this Bill. The noble Lord, Lord Black of Brentwood, if I may say so, did not give the full picture. He gave a telling account of the meaning of the word “outrageous”, but not the full context in which that word appears. New subsection (6) in Amendment 11 says:
“Exemplary damages may be awarded under this section only if the court is satisfied that … (a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights”.
“Outrageous”, “reckless” or “deliberate” is an extremely high hurdle, and I think that judges can be relied upon to keep it as an extremely high hurdle. I do not share the noble Lord’s misgivings in that regard.
The second issue relating to exemplary damages is as follows. New subsection (2) in Amendment 13, on the amount of damages that can be awarded, is worth quoting in full. It says:
“The court must have regard to these principles”—
the ones mentioned earlier—
“in determining the amount of exemplary damages”.
The first of these limitations is that,
“the amount must not be more than the minimum needed to punish the defendant”—
not the minimum needed to adequately punish the defendant, or to sufficiently punish the defendant, let alone to effectively punish the defendant.
My noble friend Lord McNally might like to take that away and think about that, because it actually rather screws the Bill, if I can use that common phrase. It seems to me that £1 of damages would, on that definition, satisfy that test, because £1 is a punishment, even if it is utterly inadequate and rather laughable. There are no qualifications to that phrase. That is another reason why the noble Lord, Lord Black, and the newspapers, are getting overly concerned—let me put that kindly.
Finally, I make a point about the meaning of “publisher”, because the noble Lord, Lord Lucas, and others have mentioned the extent to which this could impinge on smaller publishers rather than the great national newspapers and so on. I am sympathetic up to a point, but I do not like, and I hope the House will not like, the provision in Amendment 18 that is headed “Meaning of ‘relevant publisher’”. Subsection (3) of the new clause says:
“A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for the content of the material”,
and—this is the killer—
“if the person did not post the material on the site”.
In other words, if you are the operator and you did not actually post the offensive, outrageous, et cetera, material, you are free. That is quite inadequate.
If this provision is to be in the Bill, it needs to be expanded. This would allow a publisher or operator of a website to get away in the circumstance where, for example, the person who posted the awful stuff was a subsidiary company or a partner or was paid to put the stuff on the website. If you were a really malicious operator, you could think up a shell company in the Seychelles that could post the most dreadful stuff about a person or a group of people, and under this clause the operator of the website would not be liable. That needs looking at. However, as I say, all in all, I believe that, in this most difficult of circumstances, the Government, aided by the Opposition, have come up with a good set of provisions.
I end by asking my noble friend Lord McNally to tell the House, when he sums up, whether there is another example in our legal set-up where damages are dependent not on the offence but on the nature of the offender. This plays back to what was said by the noble Lord, Lord Black of Brentwood. I am concerned that it is legally unprecedented to punish not according to what you have done but according to who you are. I think that we should know that.
Crime and Courts Bill [HL]
Baroness Kennedy of Shaws Excerpts(12 years, 6 months ago)
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Lord Dear
My Lords, in introducing Amendment 119 I have in the front of my mind the words attributed to Voltaire as far back as 1759:
“I may disagree with what you say, but I will defend to the death your right to say it”.
That is what it is all about tonight. The amendment seeks to curb what I believe is an increasing misuse of the criminal law so as to curb or prevent the proper exercise of free speech. The amendment intends that the word “insulting” should be taken out of Section 5 of the Public Order Act 1986 and that Section 6 of that Act should be similarly amended to take account of the earlier change.
It might help your Lordships if I examine the history of the inclusion of the word “insulting” in legislation to illustrate how and why we have arrived at the current state of affairs—a state of affairs that, I would venture to suggest, is wholly unacceptable. In the mid-1930s, there was a progressive increase in severe public disorder on the streets of east London and in other great cities of this country, when supporters of Mosley’s black-shirted fascists were clashing with both moderate left-wing and extreme left-wing opponents. The law then was proving inadequate to deal with the problem and, as a result, the Public Order Act 1936 was enacted. It did a number of things. It introduced a number of very serious new measures: for example, to authorise or ban public marches and demonstrations; to ban quasi-military organisations; to outlaw the wearing of political uniforms in public; and so on.
At a much less serious level, Section 5 of that Act introduced the now familiar words whereby it became a criminal offence to use “threatening, abusive or insulting” words or behaviour in a public place or at a public meeting whereby a breach of the peace was occasioned or likely to be occasioned. I would ask your Lordships to fasten on to the important words there: “threatening, abusive or insulting” and “breach of the peace”. That legislation stood the test of time, and the police regularly resorted to arrests for breaches of Section 5 in what might loosely be described as disorderly or hooligan behaviour on a typical Friday or Saturday night.
Fifty years later, as part of a general tidying-up of the law that deals with public disorder, the Public Order Act 1986 reflected much of the thinking that lay behind the old Section 5. It re-enacted the legislation that made it a criminal offence to use,
“threatening, abusive or insulting words or behaviour”,
and extended it to circumstances covering displays of any writing or sign in a public or private place within the hearing or sight of a person likely to be caused harassment, alarm or distress. It removed the reference to breach of the peace and it did not require any intent to cause harassment. Clearly, the intention of the new Act was to require a greater degree of particularity in the statute so as to increase protection for vulnerable individuals.
So far, so good, and the new Section 5 also appeared to work well for a time; but not for very long. With the wisdom of hindsight, it is clear that there has been a steady increase of cases where the words “insulting words or behaviour causing distress” were being misapplied in circumstances where individuals or organisations disagreed with comments made about their own sexual orientation, general beliefs or objectives, and where the criminal sanction offered by Section 5 was used by them deliberately to curb or suppress the proper exercise of free speech, either by prosecution, or by utilising the undoubted chilling effect of a threat of prosecution.
There are numerous examples, and some of them are enshrined in the folklore that has grown up round this subject. For example, the student arrested in a demonstration for suggesting that a police horse was “gay”; the street preacher arrested for saying that he regarded homosexuality as “sinful”; the 16 year-old boy arrested for holding up a placard that read “Scientology is a dangerous cult”; the pensioner threatened by police with arrest for putting a sign in his window that read “Religions are fairy stories for adults”; and the man arrested and charged after he growled at a dog, even though the dog owner did not wish to prosecute. There was no mention of what the dog wanted. There were the animal rights activists who were threatened with police action useless they removed little models of seals from public view; seals that had been red-painted to represent blood. The list goes on and on, and I will not weary your Lordships with more examples.
Whose fault is it? Who should we blame? Obviously, on occasions the police are to blame. They have not exercised always the degree of common sense and discretion that would properly have resulted in a blind eye being turned to the conduct in question. Often, however, the police have been manipulated by those whose tactic has been to complain to the police on the spot and insist on police intervention, with the express or implied threat of a complaint against them unless action is taken. A now often risk-averse police service, and sometimes risk-averse prosecutors as well, have found it safer to mount a prosecution and leave the courts to adjudicate.
If change is in the air—the change that is projected into Amendment 119—how much support is there for it? I remember the Committee stage of the Counter-Terrorism Bill in 2008 when I tabled the amendment to prevent the then Government from extending the limit on pre-charge detention of terror suspects from 28 days to 42 days. As with this debate about freedom of speech, that issue was concerned with a major constitutional freedom. As with this issue today, there was a long run into the debate. But in 2008, opinions were divided. I was confronted then with all the alternative arguments: in person, in your Lordships’ House and outside, by letter and e-mail. There were debates on the radio, on television and in the press. There were arguments for and against, before the amendment was carried with a majority of 191.
But what a contrast that was with the current situation. With only one exception—I will refer to that later—I have not heard a word in argument for the retention of “insulting” in Section 5. There have been no personal approaches to me, either here or outside; no letters or e-mails; no telephone calls. Every comment in the media is supportive. I understand from colleagues in the House that they have been the recipients of a flood—or is it a blizzard?—of letters from people outside in all walks of life supporting the amendment. There appears on that basis to be little or no opposition. I wait with interest to see what is voiced tonight.
And look at the support. The noble Lord, Lord Macdonald of River Glaven, until recently the Director of Public Prosecutions, has signed the amendment and written a detailed opinion that I have circulated individually to Members of your Lordships’ House. It gives a brilliant resumé of the substantial legal arguments supporting this change. The noble Baroness, Lady Kennedy of The Shaws, an eminent QC and chairman of Justice, and the noble and learned Lord, Lord Mackay of Clashfern, one of the most respected Lord Chancellors of recent years, have also signed the amendment. I am very grateful to all three for their interest and support.
But there is much more, and from individuals or organisations that do not always work harmoniously one with the other. The National Secular Society and the Christian Institute are often at odds, but here they stand shoulder to shoulder supporting the amendment. I should like to record my warm thanks to the staff of the Christian Institute for the administrative help that they have given me prior to this debate. There are also the Peter Tatchell Foundation; the Bow Group; the Freedom Association; the Equality and Human Rights Commission; and the Joint Committee on Human Rights, which reported as recently as 20 November, saying:
“We understand the sensitivities with certain communities on this issue, but nonetheless we support an amendment to the Bill which reduces the scope of s. 5 Public Order Act … on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression”.
Justice fully supports the amendment, writing:
“It is essential for the progress of society that we do not ossify public views by censoring debate on matters of current public controversy”.
Liberty would scrap the whole of Section 5, not just one word; but it has pledged wholehearted support, saying:
“The amendment would herald a very significant victory for freedom of expression”.
I will not go on; there are other organisations, and perhaps they will forgive me for not adding to this very long list and taking time tonight.
Where do the police stand in all of this—for it is front-line officers who are so often caught up in the practical application of these laws? The Association of Chief Police Officers has declared that it is not opposed to the change. Only the Police Federation expressed reservations; it is the one organisation that I know has doubts about this. The Police Federation fears that the amendment would reduce the powers of police in dealing with disturbances on the street that were low- level but nevertheless troublesome. I suggest that those fears are misplaced. Most of us know that the federation is feeling bruised at the moment. Change is not at the top of its agenda. But it might well take heart from the letter that the current DPP, Keir Starmer QC, wrote to me only last week, in which he said:
“The issue has been the subject of consultations by the Home Office in both 2009 and 2011. On both occasions, the CPS responded confirming that we are not in favour of a legislative amendment to remove the word ‘insulting’ from section 5. However, having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to a conviction could not properly have been characterised as ‘abusive’ as well as ‘insulting’. I therefore agree that the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions”.
That is a very significant message indeed, and from a very significant player. As noble Lords will readily appreciate, we now have the current DPP and his predecessor both saying that the amendment can and should be carried.
This amendment, if carried, would not leave a hole in the law. Section 5 in its curtailed form would still allow prosecution for “threatening or abusive behaviour”, and there are tougher and more targeted laws, such as incitement to racial hatred, and a range of aggravated offences where hostility to the group to which the individual belongs is taken into account. Along with general laws, such as public nuisance and breach of the peace, these give the police all the powers they need to protect minority groups. It is minority groups that the law needs to look at particularly, and they would not be left out. The “abusive” limb of Section 5 covers most, if not all, genuine cases of public disorder. I will not go into the judgment in Southard v DPP, but one could find that explored there in some detail. Any repeated harassment of an individual is caught by the Protection from Harassment Act while those who, for example, burn poppies on Remembrance Sunday would be caught by Section 4A of the Public Order Act, which outlaws intentional harassment, alarm or distress.
Having tried to deal with a brief resumé of how we are where we are, looked at the abuse of Section 5 and examined some of the relevant legal provisions, I have to ask: is there any reason why this amendment should not have a clear run up the final straight to the finishing tape? Almost inevitably, as happens in life, one problem remains—a fly of fairly considerable proportions in this particular jar of ointment—and I have to say that it concerns the Home Office. The Home Office launched a public consultation on 13 October last year that sought views on three issues. Two of those are of no interest in this debate today, but one examined the possibility of removing “insulting” from Section 5. I think, though without proof, that that is the consultation that the DPP referred to before he changed his view. That consultation closed on 13 January this year. As noble Lords will know, the guidance is that the Government should respond to a public consultation within three months—that is to say, in this case, some time in April this year. To date, we have not heard a word.
At Second Reading of the Protection of Freedoms Bill in November 2011, and again on the fourth day of the debate on the Queen’s Speech in May this year, I declared that, but for the consultation period, I would have tabled an amendment to delete “insulting” from Section 5. In winding-up that latter debate, the Minister asked for patience. On 4 July this year, when the noble Lord, Lord Mawhinney, raised the issue again, the Minister again requested that we remain patient. Still there is silence. It is now over 14 months since the consultation was launched, over 10 months since it closed and over five months since the Minister asked for a little more time to consider the matter. What is going on? Is it procrastination, prevarication or bureaucratic incompetence? I do not know but, whatever the answer, I suggest very strongly that we should not and cannot wait any longer.
I opened this debate with a quotation, and I finish with another. Echoing the judgment of the European Court of Human Rights in Handyside v UK, Lord Justice Sedley, when he allowed the appeal of a street preacher for an offence under Section 5 in Redmond-Bate v DPP, said:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.
In short, the removal of “insulting” from Section 5 will ensure that where words are not abusive and, importantly, where there does not exist any evidence of intent to harass, alarm or cause distress, nor any likelihood of fear of violence or actual violence, then those words will not be illegal, even though they may insult. You do not have to agree with the sentiments expressed—only with the right of the proposer to voice them in benign circumstances. You can be reassured that the remainder of the criminal law in this area will continue to protect all groups and individuals who are intentionally insulted.
I put it one last way. To oppose this amendment is to support and to play into the hands of those whose sole aim is to suppress views with which they do not agree, come what may. I ask this House to recognise the current abuse of the criminal process, to reflect on the need to protect basic freedoms under the law, to remember that freedom of speech is one of the most important civil liberties—some would argue, the most important civil liberty—and to support the amendment. I beg to move.
Baroness Kennedy of The Shaws
My Lords, I support the amendment. I will not take long because I hope that we will move to a vote very quickly. I am the chair of Justice, the legal organisation, and I can say with confidence that that organisation, which represents the legal profession up and down the country, is wholehearted in its support of this amendment. The stories that the noble Lord, Lord Dear, has told of ridiculous cases being brought before the courts could be replicated in robing rooms and courtrooms throughout the land, and I am afraid that it really is time that we put a stop to this.
A very famous American judge once spoke about the importance of the marketplace of ideas, which means listening to views that sometimes one does not like, sometimes, as Lord Justice Sedley said, are irritating, sometimes are provocative, sometimes are heretical and sometimes might upset us. However, that is what democracy is all about, and we should take pride in it.
I wholeheartedly support the noble Lord, Lord Dear, in this amendment, and I hope that all noble Lords who are here will see the importance of this. Unfortunately, the thin-skinned are not serving our democracy well by seeking to have these cases brought. I pity the police who are put into this difficult position, and I am glad to see that both the former Director of Public Prosecutions and the current one recognise that the law is there to deal with truly offensive behaviour or that would lead to further crime and disorder. I hope that noble Lords will support the amendment.
Lord Mackay of Clashfern
My Lords, as the third string, it seems to me that freedom of expression is an extremely important part of our democratic heritage, and it has not been won without quite important sacrifices by many people who have gone before us. It is a criterion for seeing whether democracy is supported that freedom of speech is supported strongly.
Some matters connected with freedom of speech are very topical at present with regard to the public press, but the notion that freedom of speech can be tampered with without serious consequences to our democracy is a considerable mistake. The amendment would be an important step in clearing our situation regarding freedom of speech. There is no menace in an insult. Abusive or threatening language is different. It is menacing to people and, rightly, is subject to criminal law. An insult, though, is in no way threatening, except as a challenge to what I am saying. Surely we have all had one or two challenges to what we say, and we are usually the better for it, sometimes by strengthening our argument in favour of what we are saying and sometimes leading to wise reconsideration and withdrawal. I suppose that all of us have had such experiences.
I support very strongly the amendment moved by the noble Lord, Lord Dear, and I hope that if the Government are going to finish their consultation, they will do so in the right direction. It seems to me that they have taken a long time. Often that is necessary in order to clear up some issues, but I am sure my noble friend will explain tonight exactly what the position is in relation to this consultation. Why has the result not been given within the timescale that the Government themselves set?
Baroness Smith of Basildon
My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,
“will be able to put forward the Government’s considered view to the House”.—[Official Report, 4/7/2012; col. 781.]
Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.
I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?
I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?
I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.
However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.
Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.
We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.
If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.
Baroness Kennedy of The Shaws
Perhaps I may ask my noble friend whether the word “abusive” would deal with that. The law is there to deal with it. The example that my noble friend has just given could be met with the law in the way being proposed by this amendment.
Baroness Smith of Basildon
My Lords, it may well be. The answer is that I do not know. There has to be a proper examination of the evidence. If I was absolutely clear, and if we could be absolutely confident that this poor woman, Miss Williams, who was abused on a train, would be covered without the word “insulting”, I would move forward on this. I think that we could accept that. Until we have evidence from the Government that allows us to be absolutely clear that we are protecting people who are subject to abuse and insult—
Crime and Courts Bill [HL]
Baroness Kennedy of Shaws Excerpts(13 years, 1 month ago)
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Baroness Kennedy of The Shaws
My Lords, I wish to address a number of proposals but I start by saying that I heartily agree with noble Lords who have spoken about the importance of our seeking to find alternatives to prison. The increase in prison numbers is horrifying. In this period of increasing youth unemployment, it is alarming to think of the risk of young people offending in greater numbers. More and more of them may find themselves in prison, their lives ruined. That should be a source of great concern to us all. Therefore, I hope that this time we will pursue alternatives to prison with seriousness and I hope that I shall be able to vote in support of such changes.
I want to speak, first, about the creation of the new National Crime Agency to deal with serious crime. I know that there are concerns about this reform and I have reservations myself, but in general I am convinced that globalisation is presenting us with such serious challenges to our national responses to crime that we should be willing to re-examine our present arrangements and be prepared to consider reform.
The very developments that make legitimate markets work—the ease of travel, the electronic transfer of money, the internet and the mobile phone—are all just as effective in developing black markets. In my work in the courts, I see at close quarters the trade in drugs and firearms, the trade in human beings for labour or sexual exploitation, the trade in human organs, which has been all over the newspapers today, and—I was involved in such a case last year—even the trade in babies. Such high-level crime, whether it is terrorism or just traditional organised crime, involves high rewards for the criminals—the money involved is huge. In years to come, we will undoubtedly see an increase in cybercrime.
For the most part, this sort of crime is very difficult to police but it affects all our lives, with greater quantities of drugs on the streets, an increase in gun crime and a pernicious growth in the sex industry. Policing these activities requires high levels of expertise and collaboration. I saw that first hand last year when I chaired an inquiry in Scotland into human trafficking. What became very clear to me was how necessary it is to have real collaboration and systemic responses to this kind of organised crime. Human trafficking, for example, often falls foul of agencies not knowing who takes the lead. It is a crime and so should be led by the police. It should not be fudged as something that might receive an initial investigation by the border agency.
Therefore, I welcome the possibility of a more focused and strategic response, particularly to human trafficking, but to other areas of crime too. However, there are problems. If you increase the centralisation of policing of serious crime in this way, there has to be much stronger oversight than there currently seems to be in the Bill. I am also very concerned that the freedom of information exemption will be continued here and I think that that should be revisited. It is important that the public know about the workings of such an agency when it is going to interfere in the privacy of so many lives.
I turn to the subject of court reforms. I welcome the idea of demystifying the courts and have written about it for years—ever since the late 1970s. It is important that the public know what goes on in courts. I remember that in the 1980s the drama series “Crown Court” did much to awaken public understanding of the processes and the issues that arose. I have no argument with the plan to televise the hearing of appeals in the Supreme Court or the Court of Appeal so that the public can watch and listen to the arguments being presented and understand why the judges make certain decisions. However, let us be very clear that that is not what the television companies are interested in. They are interested in new products and new ways of giving us pictures. They are interested in new titillation from “Big Brother” to “X Factor”.
We know what interests most television companies and I am afraid that some of it feeds the less attractive aspects of the human condition. The television companies want criminals. They do not want to watch judges giving judgments in the commercial courts. They want criminals; they want murder and mayhem; they want rape and carnage; and they want pretty victims and nasty, thuggish offenders. They also want celebrities being dragged before the courts. This is not about transparency; it is about voyeurism. Although it may be starting in a small way, I have great concerns about where this is going to lead. Basically, television companies—I have heard it being discussed—want criminal cases and they want to be in the courtroom. Reporting criminal cases is currently very disappointing for television newsmen. Where are the pictures? That is one of the questions that television people always ask. They do not like talking heads. Talking heads are a bore and that is why it is very difficult to cover trials. You get only snatched shots of witnesses leaving the Old Bailey or those cartoon-like drawings of defendants in the dock that look nothing like the people concerned. I can tell your Lordships that—I have represented them. Sometimes I appear in those drawings.
The television companies are desperate to get into the courtroom. It will start with just having the judge giving judgment, but they are not interested in the men in wigs waxing long and impenetrably about law. That is not what they want to see. They want the sensational, the salacious and the grotesque. So I am afraid that this is one of those rare occasions when I am going to disagree with our former Lord Chancellor, the noble and learned Lord, Lord Mackay, because I do not think that this is a healthy development. I hope that there is no rush to cover judges reading out their sentencing remarks. Letting television cameras into courts carries serious risks and, although this is starting at a low level with the higher courts, the potential for drift is huge and the consequences for justice are very serious.
Perhaps I may explain that the camera does not replicate the public gallery. People say, “But this is just making the public gallery bigger”. It is not. The camera chooses what to look at. It edits as it chooses. Indeed, at the moment the camera is looking at me. It is not looking at the responses of other noble Lords to what I am saying. If you sit in the public gallery of a court, you take in not just what the witness says but what the judge says and you watch the defendant’s responses and other things that happen in the courtroom. That tells you much more than you will ever know from watching snatches of the proceedings on television, and snatches are what they will be. Some states in the United States had to introduce something called gavel-to-gavel coverage because lawyers and people concerned with justice complained that, if you did not show the whole process, people would think that they had seen the trial but they would not understand whole areas of evidence that were never placed before the public. Unfortunately, “News at Ten” will not be interested in putting it all in front of you; it will put in front of you what is most dramatic. The public will think that they have seen the trial because they will have seen bits of it and then they will think that the jury got it all wrong. That will undermine confidence in the system.
Of course, we now have other forms of technology. Once shown on television, cases will be uploaded on YouTube and downloaded on to people’s phones. We will have people playing and replaying cases. Do you think that jurors are going to resist that when we do not have juries staying in hotels as they do in America? Of course juries are reminded not to look at these things, but do you really think that they will not? Do you think that they will not do it in the company of their families at home, so that there is then another jury deciding what it thinks of the evidence? The risks are horrifying. I think that new technology will make it impossible to have a fair trial and, in the end, that will mean that the whole question of jury trial is put in jeopardy.
There is also an issue for judges. In this country, judges enjoy a level of anonymity and unrecognisability. However, that will be lost. You can be sure that comment will be made about the sentences not being strong enough or tough enough. Then judges will be vilified and criticised and they will start to become defensive because they will know that the cameras will keep coming back to their particular court. When Cherie Booth—the wife of a former Prime Minister—sits, will people want the cameras to be in court to see whether her judgments come up to snuff? These may look like advances and transparency to all of you, but I am afraid that it looks like a very serious challenge to justice to me.
I welcome the efforts on diversity. All my professional life I have been arguing about the need for more women in the courts and on the Bench, but I am concerned about a number of things. I am concerned that the issue of merit is not examined in the Bill. I would like to see a new statutory merit test because merit is not a value-free zone; it is an area where many of the judgments that are made are made from a very narrow perspective. As the Chief Justice of Canada has reminded us,
“human beings have a tendency to see merit only in those who exhibit the same qualities that they possess”.
I am afraid that in the recent appointments of two men to the Supreme Court—there is still only one woman in that court—25 consultees were asked for their views and 24 of them were men. The outcome is affected if the gatekeepers are all from one perspective. Currently the emphasis is on one relentlessly individualised understanding of merit and it is too narrow. Instead, the collective competence of the court should be a central feature of appointment, allowing for the correction of deficits in terms of diversity but also in terms of specialist experience, such as people who have experience of trying cases involving children or people who have experience beyond the commercial. Candidates should, in the first instance, fulfil the criteria of intellectual ability and professional experience in practice, but then we might look to some of the other factors that would enrich our courts.
The Bill has much to commend it but much that needs to be looked at again. I hope that in Committee we shall make it very much better.
Lord Mackay of Clashfern
Did the noble Baroness see the television recording of the sentencing remarks in a recent murder trial in Scotland?
Baroness Kennedy of The Shaws
I did, but I think that one case can often make bad law. Of course, an individual judge giving a judgment in a case can make people think that that was interesting and reasonable. However, you can be sure that, as we cover all cases more regularly, certain judges will be considered too lenient and they will be pursued. We shall find that the hunger for punishment will be fed by certain television stations. I am concerned about where this will go, so I hope that a good deal of caution will be shown before we go down this road.