Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Stewart of Dirleton (Con)]

The noble Lord asks a highly detailed numerical question, and he will not be surprised to know that I am unable to answer it from the Dispatch Box.

[Baroness Ludford (LD)]

A ballpark figure would do.

[Lord Stewart of Dirleton (Con)]

We will do our best to provide one in short order in writing to the noble Lord, if that would be acceptable to the noble Baroness.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid I rise again to make a point that really should not have to be made. I made the point on a previous group that we are a dualist state where international law is not part of domestic law unless and until it is so incorporated by this Parliament. Later, perhaps in a question, the noble Baroness, Lady Chakrabarti, rather poured scorn and said that this was some sort of technical dualist point. It is not a technical dualist point; it is a fundamental part of our constitution.

Another fundamental part of our constitution is that, when we sign up to international treaties such as the Vienna convention, we have to look at what they actually say. This is not an Oxford Union debating point for two reasons: first, it is far more important than that; and secondly, I have never been a member of the Oxford Union. Article 31 of the Vienna convention, on the interpretation of treaties, says:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.


Each state therefore has to interpret its obligations under a treaty.

Some treaties, such as the European Convention on Human Rights, have a court attached to them. If you sign that treaty and sign up to the court, you are obliged to abide by the rulings of the court, in so far as those rulings emanate from the treaty. For example, Article 46.1 of the European Convention on Human Rights provides that the UK has to abide by any judgment given against the UK by that court. That is what we signed up to in the treaty. The refugee convention does not have a court attached to it. Therefore, this country, like every other, has to interpret the treaty bona fide—in good faith.

What, then, is the position of the UNHCR? It is exactly as the noble Baroness, Lady Chakrabarti, read out from the treaty, but it is not the gloss that she put on it. The word “interpret”, which she used in her speech, does not appear in the treaty. That is not an accident, because the states were not going to give the UNHCR the power—[Interruption.] I will give way if the noble Baroness, Lady Chakrabarti, wants to make an intervention; otherwise, I cannot hear her.

[Baroness Ludford (LD)]

If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:

“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”


I suggest that that is not a million miles from assisting in the common interpretation of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

[Baroness Ludford (LD)]

The noble Lord is a good lawyer and I am not, and I know that time is pressing on. However, it says more than just that we should co-operate with the UNHCR. It asks contracting states to facilitate the UNHCR’s

“duty of supervising the application of the provisions of this Convention”—

I emphasise “supervising”. I do not know how that terminology was arrived at but it is saying more than that the UK must co-operate with the UNHCR. The UNHCR has a sort of supervisory duty, and I think that is more than what the noble Lord is saying.

[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I speak in favour of the amendments in this group, including my Amendment 8; I thank the noble and learned Lord, Lord Etherton, for adding his name to it. My amendment deals specifically with Clause 2(4) and would include persecution of a person on the basis of gender, sexuality and gender identity for the purposes of the third condition under which a person could be removed. However, I wish to now speak against Clause 2 and the duty to deport.

As we have heard from other noble Lords, the Bill seeks to give unprecedented powers to the Home Secretary to deport people without even a fair hearing of their case. The Home Secretary is in fact compelled to carry out that duty, even when it conflicts with human rights protections. The Bill seeks to limit the circumstances in which legal challenges could prevent a removal and allows the Home Secretary to add or remove countries to the list of so-called safe countries. This is even more worrying, looking at Schedule 1. At present, four of the countries on that list are not signatories to the UN convention, and some may not even have a functional asylum system. I will come back to this later on a further grouping but, if a person were deported or returned to most of the countries on the list in Schedule 1, they would face discrimination on the grounds of their sexual orientation or gender identity. Nigeria is one that springs to mind.

Without the requirement to make individualised assessments about whether it is safe to remove a person seeking asylum, and in providing very limited opportunities for individuals to present evidence of the risks that they could face, there is a real concern that many refugees will be deported to a country where their safety is at risk, or returned to their home country where their life could be threatened again, as I have said. The refugee convention makes it clear that return is prohibited to any country where a refugee could face persecution and not just their own.

I return now to the thinking behind my own amendment. In passing through a so-called safe third country, I refer to the internationally accepted definition of a refugee, which makes reference to five possible grounds for persecution: race, religion, nationality, membership of a particular social group, or political opinion: UN General Assembly 1951, page 137. These grounds are also recognised as covering persecution on the basis of sexual orientation or gender identity and gender-based human rights abuses.

Such examples also illustrate that persecution may happen where the state is not itself the perpetrator. Although some definitions have in the past required this, it is not universal. I believe it is therefore right to expand within the Bill the acceptance of individuals becoming refugees both when persecution is perpetrated by the state and where there is a failure of the state to provide protection against persecution by others. On that basis, I commend my amendment to noble Lords.

[Baroness Ludford (LD)]

My Lords, I will quickly speak on Amendment 12, otherwise I fear there will not be a second voice in support of the very important issue of the potential impact of the Bill in respect of Northern Ireland. The Northern Ireland Human Rights Commission has pointed out that the human rights memorandum does not include an assessment of compliance of the Bill with Article 2 of the Windsor Framework, so my first question to the Minister is: will that memorandum be amended to include such an assessment?

The Bill raises significant concerns about compliance with the Belfast/Good Friday agreement and with the Windsor Framework, because the incorporation of the European Convention on Human Rights into Northern Ireland law was an explicit commitment of the Good Friday agreement and was achieved through the Human Rights Act. The Bill would constitute a breach of two core elements of this commitment: the guarantee of direct access to the courts and the obligation to provide remedies for breach of the convention, under the relevant chapter of the agreement. That chapter extends to everyone in the community, which includes asylum seekers and refugees.

I believe the Bill is also inconsistent with obligations under Article 2 of the Windsor Framework, which details various equality and non-discrimination EU directives with which Northern Ireland must keep pace. This includes the victims’ directive and the trafficking directive. The potential for the Bill to lead to failures in identifying and supporting trafficking victims, as well as the provisions on detention and removal, would place Northern Ireland in direct contravention of those directives. I believe that the Government’s explainer document on the Windsor Framework, Article 2, acknowledges that its protections apply to everyone who is subject to the law in Northern Ireland. Asylum seekers are part of the community and therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Good Friday agreement. I understand that in ongoing court proceedings—I prefer “continuing” court proceedings—the Home Office has not disputed the argument that the protections of the relevant chapter of the Good Friday agreement extend to asylum seekers and refugees.

The Bill instructs the Secretary of State to declare inadmissible any claim that removal of an individual would breach their convention rights, if that individual met the extremely broad criteria covered by the duty to remove. It says that this inadmissibility cannot be appealed, so if those provisions were applied to someone arriving in Northern Ireland, it would be a direct breach of the Belfast/Good Friday agreement because it makes convention rights inaccessible and restricts that individual’s direct access to the courts and remedies for breach of the convention. Also, the application of the Bill to land border crossings could constitute a breach of Article 2 of the Windsor Framework and indeed of its very objectives.

To try to compress all that down, it is a matter of considerable concern that there is a failure to address compliance with Article 2 of the Windsor Framework, and more broadly with the Good Friday agreement, in the human rights memorandum to the Bill. I will end where I started, which is to ask the Minister whether such an assessment is going to materialise.

[Lord Etherton (CB)]

My Lords, I have co-signed the amendment in the name of the noble Lord, Lord Carlile or Berriew, and that in the name of the noble Lord, Lord Cashman. I will make some very brief comments on both.

The principle against retrospection in statutory provisions is very long-standing and well-established because it upsets settled status and settled rights. It follows that it can, save in exceptional circumstances, operate both unfairly and so as to create legal uncertainty in the way that people conduct their affairs.

The best example of where retrospection would be appropriate is in relation to a finance Bill and Act giving effect to a Budget, with the time lapse between the two enabling people to enter into tax avoidance arrangements. But here it would be utterly impossible—certainly without any credibility—to suggest that those who are either crossing the channel or promoting that crossing unlawfully or illegally have organised their affairs, or were ever likely to organise them, on the basis of the complex provisions of this statute. I have never heard anybody suggest to the contrary. For my part, I can see absolutely no sound reason why the normal rule—which is one of fairness and certainty, as I said—should be upset in this case.

I support the amendment in the name of the noble Lord, Lord Cashman, because extending the definition of the third condition to include gender identity and sexual orientation brings to the forefront something which has plainly been ignored in the drafting of the Bill. There is absolutely nothing in Schedule 1 which excludes from the places to which people can be removed those LGBT people who would undoubtedly face extreme persecution, varying from sentence of imprisonment to death and assault. Raising this issue here will, I hope, direct the Government and the Bill team to a serious lacuna in the legislation.

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[Lord Murray of Blidworth (Con)]

Forgive me: as I thought I said, the status of a child born in the UK to a woman who meets the conditions in Clause 2 is that they would not satisfy the conditions in that clause. I realise that there were a number of hypotheticals in the way that that question was written. If I may, I would like to go away and think about them. I will reply by letter in due course, and obviously publicise that letter.

[Baroness Ludford (LD)]

The Minister talked about an amendment that I had co-signed. Was it Amendment 132?

[Lord Murray of Blidworth (Con)]

It was Amendment 137.

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[Baroness Ludford (LD)]

Sorry—I will look and check that it covers the point.

[Baroness Bennett of Manor Castle (GP)]

The Minister, not to my surprise, did not address my question about what happens after the election. I will phrase the question another way. In your Lordships’ House, we often ask about “must” and “may” provisions. Rather than a duty to remove, surely the Government could make it that the Secretary of State “may” remove. That would allow this Government to act as they wish but would not attempt to tie the hands of any future Government.

Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

That is what Amendment 1 seeks to do. I beg to move.

[Baroness Ludford (LD)]

My Lords, I would like to speak to Amendment 2—unless the noble Baroness, Lady Meacher, wants to go before me.

[Baroness Meacher (CB)]

My Lords, with some trepidation, I want to comment on Amendments 1 and 5, tabled by my noble and learned friend Lord Hope. Under the refugee convention, anyone approved as a refugee has never been an illegal or unlawful immigrant, however they came to the UK. To define anyone as an illegal immigrant who may subsequently be deemed a refugee surely flies in the face of the refugee convention—or that is how I read it. I am sure that my noble and learned friend has a very good riposte to what I am saying, but if by any chance he does not feel he has, he may want not to press those two amendments.

[Baroness Meacher (CB)]

Is it not our job to ensure that the Bill does not come up against the convention?

[Baroness Ludford (LD)]

My Lords, I would like to speak to Amendment 2, which is in my name and those of my noble friend Lord Paddick, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Coaker. I will take just a little while. We had only six minutes at Second Reading and this group is key to the whole Bill. My remarks will follow on almost seamlessly, if I may say so, from those of the noble and learned Lord, Lord Hope.

[Lord Hacking (Lab)]

Did the noble Baroness refer to Amendment 32 just now?

[Baroness Ludford (LD)]

No, I referred to Amendment 2, which is the second one in this group.

Before I move to human rights issues, I want to make a couple of preliminary points. First, it is incumbent on this Committee to subject this Bill to very detailed scrutiny. It proposes to strip human rights protections from a group of people excluded from the democratic process. It is a core part of our justification, as an unelected revising second Chamber, that we do this kind of detailed scrutiny.

In the other place, there was quite a compressed timetable—that is an understatement. Second Reading there was expedited, only a few days after the Bill’s introduction. Instead of the usual detailed consideration and evidence-gathering in Committee, the Bill had only two days on the Floor of the House, during which its provisions were considered out of sequence. On Report, the Government published more than 100 amendments at late notice, dealing with both substantive and highly technical issues, many of major constitutional importance. Particularly in the case of this Bill, it behoves us to carry out intense scrutiny.

My second preliminary point was made in a briefing from the Law Society. It stressed the importance of the UK’s reputation for its commitment to the rule of law and international obligations, including human rights obligations, to our attractiveness as a place to do business. It says:

“Senior representatives of the UK’s biggest law firms have told us they are concerned about the damage non-compliance”


with our legal commitments

“could do to the UK’s economic competitiveness, by undermining the confidence of businesses looking to invest in the UK”.

I think we recently saw a reported drop in UK inward direct investment, and Germany has shot up the list. It is not just for us human rights nerds that international legal commitments are important. Global business places great importance on these issues too.

This is a perilous moment for human rights protections in Europe, as the war on Ukraine by Russia continues and Russia has been expelled from the Council of Europe. The UK’s reputation is strengthened by being not only a founding party to the European Convention on Human Rights but an active, leading member of the Council of Europe. It was therefore good news that the Prime Minister went to the recent Council of Europe summit of Heads of State and Government.

Now is precisely the moment for the UK to lead on the world stage in reinforcing basic human rights norms and international law, including the ECHR. Pushing this Bill through this Chamber when the Government cannot confirm that in their view, multiple provisions in it are compatible with the European Convention on Human Rights, threatens our reputation as a country that upholds international law.

As has been noted by the noble and learned Lord, Lord Hope, the Home Secretary has been unable to make a statement under Section 19(1)(a) of the Human Rights Act that the Bill is compatible with convention rights. This is an extremely unusual step, and it means there is a high risk that the Bill will violate rights under the ECHR. Then, we have a bit of snakes and ladders. We have the Section 19(1)(b) statement, but in a Home Office Oral Statement delivered in the Commons on 29 March—which the Minister repeated here—entitled “Illegal Migration Update”, the Minister for Immigration said:

“Of course, as we reform the asylum system, we will continue to honour our country-specific and global safe and legal commitments.” —[Official Report, Commons, 29/3/23; col. 1017.]

In his letter to us on 27 April, the Minister said:

“As the Minister made clear in the House of Commons, the Government takes our international treaty obligations incredibly seriously”.


We have the statement with the Bill, but when the Home Secretary introduced the Bill, she expressed confidence that it was compatible with international law, as the Minister’s statements have said. However, her justification for being unable to make a statement of compatibility with the convention was that the Government’s approach was “robust and novel”. We are getting considerably mixed messages: on the one hand, the Government cannot confirm that the Bill is compatible; on the other, there are statements from the Home Secretary that she is “confident” and certain that the Bill’s measures are compatible.

How she can have that stated confidence—when she had to make a Section 19(1)(b) statement that she cannot confirm that it is compatible—is a mystery. We have a juxtaposition of different measures. If the Government cannot confirm that the provisions are compatible with the ECHR, it threatens our reputation as a country that upholds international law. I am sorry that I have taken a bit of time on this amendment, but it seems crucial to the whole passage of the Bill through the House.

Finally, I turn specifically to Amendment 2. As the noble and learned Lord, Lord Hope, mentioned, it would remove Clause 1(5) of the Bill, which disapplies Section 3 of the Human Rights Act 1998. I remind noble colleagues that Section 3 places a duty on a judiciary to interpret, so far as it is possible to do so, all legislation

“in a way which is compatible with the … rights”

under the ECHR, which are incorporated into domestic law through the HRA. The effect of the provision in the Illegal Migration Bill is that judges will be unable to reconcile its provisions with our human rights obligations under the HRA and the ECHR. The only option available to the courts would be to issue a declaration of incompatibility under Section 4 of the HRA. However, that merely flags incompatibility to the Executive. The court cannot do anything about it; it just has to flag it, which puts the ball back to the Government to have responsibility to initiate measures to rectify the incompatibility.

The possible likely outcome of all this is that these cases will go to the Strasbourg court. Given that the UK court has already found that there is a violation, because it had to issue a declaration of incompatibility, it is likely that Strasbourg will find a violation, thereby putting the UK on a collision course with the European Court of Human Rights. It would be a serious breach of international law if the UK refused to comply with a binding judgment issued by the Strasbourg court.

All in all, I put it to the Committee that the Government have got themselves in quite a mess with the HRA and the ECHR. Removing the scope of Section 3 of the Human Rights Act suggests that the Government are in fact worried about the provisions of this Bill being incompatible with our international law obligations under the ECHR. Otherwise, what would there be to worry about? If the Home Secretary is “confident” et cetera, leave it to the courts to interpret the Bill’s compatibility with convention rights. If human rights compliance is truly sought by this Government, why is it necessary to oust the duty to do nothing more than interpret the Bill in accordance with the Human Rights Act—if the Bill’s wording can provide for that?

Removing this provision, Clause 1(5), from the Bill, as Amendment 2 requests, would go some way to resolving anxieties about the impact of the ministerial statement under Section 19 of the HRA, whereas retaining the application of Section 3 would help to uphold the UK’s reputation as a jurisdiction which upholds the rule of law and respect for human rights. That is what I suggest should happen.

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[Lord Sandhurst (Con)]

That may be so, but the numbers are on a rising plane, and it is not simply Albanians now, they are coming from elsewhere. All I say is this. This is a carefully interlinked package of provisions. It may not be attractive or how we have done things in the past, but we face very different circumstances, and I suggest we should not seek to unpick its structure.

[Baroness Ludford (LD)]

I just ask the noble Lord about his point on Section 3 of the HRA, which he regards as disadvantageous. He talked about courts having to make a strained interpretation. I wonder whether he would give me some idea of how many cases there have been where the courts have had to strain to make this interpretation. Presumably, if they felt they had to do that, they would have had to resort to Section 4, declaring incompatibility. The review by Sir Peter Gross did not have a major problem with Section 3—I think there was a little tweak that has escaped my memory for the moment. It was broadly satisfied with the operation of Section 3, so I wonder why it is so difficult. With Section 4 and declarations of incompatibility, there is the disadvantage of having to make remedial orders—and there is not really capacity in the Commons to do that—and/or end up in the Strasbourg court. It seems to me much better to give some leeway to the courts to interpret legislation compatibly with the convention.

[Lord Sandhurst (Con)]

, I looked at Sir Peter Gross’s report yesterday and the night before to remind myself of what it said. Two points are important. One is that it was not unanimous on that point, unlike on everything else. We are not told where the disagreement was, but at least one member did not agree that nothing should be done. Secondly, it lamented the fact that there had been no statistics kept of the cases in which the court has gone down the route of Section 3, so we do not actually know when there has been what might be called a strained interpretation or when it has been a perfectly natural interpretation. You can read it if you look at individual judgments. The one in which Lord Steyn spoke is the case of Ghaidan—I cannot remember the other name in the case—

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[Baroness Chakrabarti (Lab)]

I am grateful to the former Minister and sure that he listened carefully to how Section 19 was introduced into the deliberations of the Committee earlier, not least by the noble and learned Lord, Lord Hope. Members of the Committee have been pointing to the contradictions in the Government’s position around the compatibility of this Bill—Section 19(1)(b) on the tin and then something else in the ECHR memorandum. It is the clarity of the Government’s belief that Members of the Committee have for some hours this afternoon been looking for.

[Baroness Ludford (LD)]

To avoid the noble Lord, Lord Wolfson, having to be up and down too many times, I will jump in here. The noble Lord, Lord Carlile, pointed out that the Secretary of State’s inability to make a Section 19(1)(a) declaration was in relation to only one clause. The content of that clause was the proposed ban on political advertising across all broadcast media. One can see why that might inhibit a Section 19(1)(a) declaration, but it is not on the same scale as what many of us in this Chamber this afternoon maintain are the various and extremely serious breaches of the European convention commitment. It is apples and pears, or chalk and cheese—I am mixing my metaphors horribly. It is not a good precedent for saying why there cannot be a declaration of compatibility for this Bill. It is not on the same scale.

[Lord Wolfson of Tredegar (Con)]

I am grateful for that shortish intervention. Essentially it raises the same point that the noble Lord, Lord Carlile, put to me and, without any disrespect, I give the same answer. I am focused, as a matter of principle, on what Section 19 does.

Amendment 2, which has already been referred to by my noble friend Lord Sandhurst, disregards Section 3 of the Human Rights Act 1998, which is a very odd section. Uniquely in our law, it requires that other Acts of Parliament be interpreted:

“So far as it is possible to do so”


in accordance with the convention rights. We do not do that in any other area of our law.

The case law under Section 3 is extremely complex. As has been referred to before, Sir Peter Gross set this out in his review of the Human Rights Act. I would be entirely content if I could be sure that the current law on what Section 3 does remains the law. What we have seen, however, when we look at Ullah, Al-Skeini or other cases, is that what Section 3 means and how it is interpreted by the courts has moved. In those circumstances, the Government are right to exclude Section 3 of the Human Rights Act from the Bill by way of its Clause 1(5).

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[Lord Murray of Blidworth (Con)]

As the noble Lord knows, the Prime Minister and President Macron have had regular discussions and there have been regular treaties and agreements in relation to the enhancement of police powers in France, but it is not presently the position of the French Government that they are willing to accept the return of those who have entered the UK illegally. That is what drives the Government to look for other avenues to dissuade people from embarking on the dangerous journey across the channel.

Turning to Amendment 2, tabled—

[Baroness Ludford (LD)]

I am sorry to intervene on the Minister, but I wonder if he could direct my attention to where in Article 31 of the refugee convention it refers to “illegal migrants”. I can find a reference only to “illegal entry or presence” or “entry or presence without authorisation”. It is the entry or the presence that is illegal or unauthorised; it is not the person. That is the problem that many of us have with the term “illegal migrant”. I cannot find it in Article 31 of the refugee convention; perhaps I have not looked hard enough.

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Baroness. I was indeed about to mention her in my next sentence. Let me address that point and repeat what I said earlier. The phrase “illegal migration” in the Short Title of the Bill refers to the fact that the act of entering otherwise than in accordance with immigration controls was criminalised by an Act passed by this House and the other place in 2022. That is why it is correct to describe such people as “illegal migrants”—because they did not enter in accordance with immigration controls. That is the long and the short of it. The interpretation of Article 31 is irrelevant as regards that point of certainty.

I turn now to Amendment 2, tabled by the noble Baroness, Lady Ludford. This amendment seeks to strike out subsection (5), which disapplies Section 3 of the Human Rights Act 1998. The disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than the strained interpretations imposed by the courts to achieve compatibility with convention rights. As my noble and learned friend Lord Wolfson, King’s Counsel, pointed out, Section 3 is an unusual provision in UK law and there is, in principle, no reason why it cannot be excluded in cases like this.

It is our view that Parliament and the Government are better suited to address the sensitive policy issues involved in this legislation. It is therefore only right that Section 3, which requires the court to interpret the provisions to achieve compatibility with convention rights, must be disapplied so that courts interpret the law in accordance with the purpose of the Bill. Through this, we are ensuring that the balance between our domestic institutions is right and that Parliament’s intent is clear to the courts.

As the noble and learned Lord, Lord Hope, explained, Amendment 3 flows from the recent report of the Constitution Committee. I am very grateful to that committee for its scrutiny of the Bill. We are studying its report carefully and will respond in full ahead of Report. As for the genesis of the amendment, the noble and learned Lord explained that the Constitution Committee considered that more explanation was needed around the Section 19(1)(b) statement that I made on the introduction of the Bill in this House.

Notwithstanding that the noble Lord, Lord Kerr, quoted from my Second Reading speech on this issue, I reiterate the point I made at that stage: a Section 19(1)(b) statement means not that the provisions of the Bill are incompatible with the convention rights, only that we cannot be certain that they are compatible. The assertion suggested by the noble Lord, Lord Coaker, in his speech a moment ago, that the statement amounts to a concession that measures in the Bill are incompatible, is not the case. The purpose of Section 19, as my noble friend Lord Wolfson set out, is that it is a statement that the provisions of the Bill are incompatible with convention rights and we cannot be certain that they are compatible. It is of course a measure in a piece of legislation passed by the last Labour Government and therefore something that the noble Lord, Lord Coaker, would no doubt place great weight on. Those are the terms that we find in Section 19 of the Human Rights Act.

Carriers’ Liability (Amendment) Regulations 2023

Baroness Ludford Excerpts

Monday 13th March 2023 Lords Chamber

[Lord Berkeley (Lab)]

My Lords, I am grateful for the opportunity to have a short debate on these carriers’ liability amendment instruments, SI 2023/29 and SI 2023/30, which the 27th report of the Secondary Legislation Scrutiny Committee has drawn to your Lordships’ attention.

My purpose in raising this was to be able to reflect with the Government and other colleagues on the balance between the very strict and tight regulations which will be applied to the road freight and bus industries, in respect of clandestine or illegal immigrants, and the risk and demand and, as we have seen more recently, the very large number of people who have come across the Channel in small boats. It seems that we have a situation where the penalty very much depends on the mode of entry.

For trucks and buses, whether they are going on ferries or through the Channel Tunnel, the penalty is about £10,000 per entry for the so-called responsible person. It is not quite clear what penalty is payable if people smuggle themselves on freight trains—there are regulations going back many years on that—or whether that applies to trucks on trains. With people in small boats, as we have seen in the press quite a lot recently, it does not seem that anybody gets penalised, because the perpetrators cannot be found. You can see on that basis why the organisers, if there are some, have chosen the small boat route. But if we go back quite a few years, before the small boat revolution—if we can call it that—on the Calais to Dover route, a lot of people were being smuggled on trains and in lorries. One can conclude from this that most of the problems are solved, to the benefit of the people who want to manage these things and take people across, by removing the risk of being caught.

It would be useful therefore if the Minister could start by helping me and maybe other noble Lords with definitions. What does “clandestine” mean? What does “illegal” mean in the case of immigrants? Some of them may be asylum seekers. Does it actually mean everyone apart from visitors? Some people seek asylum and I believe that you have to set foot in the UK before you can. Some people obviously melt away.

However, there are other ways in, for example small boats and other places. The documentation mentions big boats and ships; we have talked about buses and trucks and other vehicles through the Channel Tunnel. But where do they have to come from? In other words, are the same regulations going to apply if you are coming from the Republic of Ireland, either by sea or by air, or going across the frontier into Northern Ireland?

It is not my intention to debate the rights and wrongs of who comes from where, but to try to point out the difference in the way the people organising it and some of those who are suffering are being treated by different modes. The report says that 3,838 people came smuggled in lorries last year, whereas the government website says the total was about 45,000. I would be interested to know how many people were smuggled on rail freight through the tunnel and how many came in, as I mentioned earlier, from the Republic of Ireland. Do these instruments apply there? How many people come across the land frontiers? Equally important for these other modes is how many people are caught and fined in the trucks and buses—maybe we do not know. It would be very good to know why the road freight and bus industries are being singled out for some pretty tight regulations in these SIs.

The Explanatory Memorandum says, in paragraph 10.2 on the consultation:

“Most respondents said the levels of penalty for the existing offence should either be unchanged or should be reduced. Stakeholders also emphasised possible adverse impacts on trade if penalty levels were too high”.


However, the Government are doing the opposite. There was certainly a report which I read, I think last week, about the rather short supply of vegetables from Morocco. The customers were diverting the freight to Belgium and Holland to avoid getting caught in the problems coming into the UK.

I would be interested to know why the Government think that the small number—about 4,000—of people allegedly coming in by truck or bus, compared with the 45,000 who are coming in small boats, justify the present pretty draconian penalties, which will only increase the costs of cross-channel freight. I look forward to the Minister’s comments.

[Baroness Ludford (LD)]

My Lords, the usual channels on the Opposition Benches have just had a quick word with me, saying that the noble Lord, Lord Ponsonby, will be able to contribute to the debate.

On these Benches, we welcome the opportunity that the noble Lord, Lord Berkeley, has given us to debate the regulations and the code of practice. He has comprehensively and usefully set out his concerns. We are concerned that—first, through these sanctions on drivers, and, secondly, in the new Illegal Migration Bill, which is still being debated in the other place—the Government are failing to target the criminal gangs exploiting vulnerable people. Their actions never seem to go upstream to get at the smugglers and traffickers. Does the Minister agree that the Government should be focusing on stopping dangerous crossings by whichever means, whether in the back of lorries or on small boats in the channel, by exercising criminal investigations and prosecutions in co-operation with our European partners? Does the Minister agree that providing safe and legal routes to sanctuary is one way of undermining the criminal gangs involved in people smuggling and trafficking?

The noble Lord, Lord Berkeley, talked about the need for a “coherent and holistic policy”. That theme is shared by many critics of the Government’s many actions on what they call “illegal” asylum seekers, but what my Benches and I would call “irregular” asylum seekers. The Government are flailing around all the time; they never address the need for safe routes and the need to work in partnership to target the criminal gangs. In addition, can the Minister provide an update on what investment the Government are making in officers, training and technology to prevent irregular entry at Britain’s borders?

On the specifics of the code of practice and the regulations, does the Minister recognise the validity of some of the concerns expressed by the Road Haulage Association on the clandestine vehicle checklist? I take the point raised by the noble Lord, Lord Berkeley, that “clandestine” is not defined. The RHA says that the clandestine vehicle checklist is too vague and requires clarity to be of use to operators. That is in the light of the comment in the Explanatory Memorandum to the regulations, that, in response to the consultation:

“Stakeholders welcomed the review of the current vehicle security Code of Practice and supported looking to articulate the required standards more clearly.”


Certainly, in the view of one of the main trade associations, the Road Haulage Association, that aim has not been fulfilled, and I will quote some of the specific points it raises. The first is that

“checking beneath HGVs is not always easy or safe especially if a vehicle has low axles”—

I presume that means, in layman’s terms, that you are expected to crawl underneath an enormous lorry, which sounds not only difficult but potentially unsafe. Then it points out:

“The section that calls for ‘checks inside vehicle for signs of unauthorised access’ is too vague, as it does not list whether trailers should be empty before loading.”


The RHA also says:

“Some checks would also be difficult to carry out with temperature-controlled vehicles as opening them requires a refrigerated environment.”


That seems a fair point. Are drivers expected to carry out checks on a refrigerated vehicle in the middle of a July or August day in France? The fourth point the RHA makes is that

“trailers filled with boxes make it impossible to check the roof for signs of forced entry, due to the impossibility of opening the … doors while on the road.”

Those objections all seem reasonable, understandable and eminently sensible, and I look forward to the Minister addressing them.

Finally, I ask the Minister about the fact that, apparently, the only statutory defence would be duress, as

“it will no longer be a statutory defence to say that an effective system for preventing the carriage of clandestine entrants was in operation”.

In quite a lot of scenarios for regulated activities, the emphasis is often on whether you have an adequate policy and a system, so that, if something happens that should not have happened, you can show that you had all the preparation, systems and safeguards necessary. But apparently that would not apply in this situation; the only defence would be if the driver could show that they were put under duress, even if they had done everything reasonable in the circumstances. It is a very narrow basis for a defence.

I look forward to the Minister responding to as many of my points as possible.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we in the Labour Party support these statutory instruments because we believe we need stronger action to tackle dangerous lorry crossings, crack down on criminal smuggler gangs and secure the UK’s borders. Given that the maximum penalty levels have not risen since 2002, we believe it is right to look at these levels as we are now.

However, the Government have said that these measures are being put in place to tackle negligence rather than criminality. Given this, what do the Government plan to do to tackle criminal smuggling and trafficking gangs using lorries to transport migrants? How many of the 3,838 incidents during the previous financial year do the Government believe have been caused by negligence rather than criminality? How many incidents do the Government estimate these new penalty levels will prevent? How many convictions have the Government secured in the previous year against criminal gangs organising vehicle crossings of migrants? Some hauliers have said that there is little more they can do to ask their drivers to better secure their vehicles while maintaining health and safety regulations. How will the Government ensure that these fines target those who are being genuinely negligent?

EU Settlement Scheme

Baroness Ludford Excerpts

Monday 13th March 2023 Lords Chamber

Asked by

[Baroness Ludford]

To ask His Majesty’s Government, further to the High Court judgment of 21 December 2022, what plans they have to allow EU citizens who hold pre-settled status under the EU Settlement Scheme (1) to keep their rights under the Withdrawal Agreement when that status expires, and (2) to automatically obtain permanent residence rights without making a second application to that scheme.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

We have informed the High Court that we do not wish to pursue an appeal against the judgment. This avoids continuing uncertainty for those affected. We are working to implement the judgment as swiftly as possible, and we will provide a further update in due course.

[Baroness Ludford (LD)]

My Lords, it is nearly three months since the High Court found that the Government’s interpretation of the withdrawal agreement was wrong in law in the way it constructed the EU settlement scheme for EEA citizens to get a permanent residence right. I suggest that the Government need to undertake some consultations with parties and groups with relevant expertise, such as the3million and the Independent Monitoring Authority for the Citizens’ Rights Agreements, to ensure that any changes now uphold—rather than undermine, as in the past—the rights under the withdrawal agreement. Are the Government undertaking such consultation? Can the Minister clarify what “in due course” really means?

Illegal Migration Bill

Baroness Ludford Excerpts

Wednesday 8th March 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, here we go again, as the Government launch yet another Bill to deal with their catastrophic failure on asylum. We have record backlogs, claimants waiting sometimes years for claims to be sorted, children lost, and claimants bundled into hotels with no or little local consultation. Last year, a record 45,000 people crossed the channel on small boats, up from four years ago, as convictions for people smugglers have halved. It is a public policy failure.

Just last year, the Nationality and Borders Act was passed. The Home Secretary said:

“Anyone who arrives illegally will be deemed inadmissible and either returned to the country they arrived from or a safe country.”


Can the Minister update us on how that is going? How can it work with no return agreements and the shocking Rwanda plan, as it should be, stuck in the courts? Last year’s Act led to 18,000 people deemed inadmissible because they travelled through safe countries. Without the return agreements, which the Minister never mentioned, can he confirm that just 21 were returned—or if he prefers, 0.1%. The other 99.9% were placed in shocking hotels, or similar, at the cost of £500 million and more boats arriving. It is chaos—chaos with shocking human consequences and potential rises in community tensions.

What is different this time? Where are the return agreements? Where are all those to be detained for 28 days going to be housed? What happens after the 28 days? Let us remember, among those people, there will be torture victims, those fleeing war and persecution, Afghan interpreters and families with children. It is chaos, unworkable, but it gets the Government the cheap headlines they crave—even if it means potentially excluding victims of modern slavery or trafficking. Where are the safe and legal routes that many in this Chamber have been asking for? To take one example, what route exists under the existing rules or under this Bill for Afghan interpreters who fled Afghanistan, and were told by the Government to flee Afghanistan, to avoid capture by the Taliban?

Let us put in place an alternative, one that will no doubt be mocked by those seeking sensationalism. This would include: giving asylum caseworkers the support and help they need to speed up the process, rather than criticising them in emails; putting in place proper new agreements with France, Europe and others, including returns; properly controlled and managed legal routes, such as family reunion and reform of resettlement. What is wrong with competent and sensible public authority? What about the plan to tackle gangs by establishing a cross-border policing unit—why has that not happened? Have we got to the point where, as a people smuggler told Sky News yesterday, three-quarters of the smugglers live in the UK? Is that right? What is the figure? What are the Government doing to arrest and prosecute them?

All of this is being done in a Bill that drives a coach and horses through international law, leading to a potential withdrawal from the ECHR. What does the Minister think one of its architects, Winston Churchill, would think of that? How does the Minister justify the unbelievable statement about the ECHR on the front of the Bill? I have never read something like this on a Bill before:

“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.”


That is written on the front of the Bill. It is unbelievable that a British Government should put on the front of a Bill that they should ignore international law and the legal system in this country. This is an absolutely disgraceful disregard for international law.

What will other countries think of us? Are we as a country not about upholding the principle of respecting international law? Is that not one of the things that we campaign for across the world? Of course, we have a difficult issue to deal with around small boats, and we have outlined, as I just did, some sensible ways forward. But it cannot be right to seek to solve this issue through strategies rather than solutions, or by gimmicks, quick headlines and recycling harmful rhetoric. The Bill is not a solution and is not in the finest traditions of our country, which we are all so proud of. It risks making the chaos worse. Is it not true that the only people to blame for that will be the Government themselves, but the people who will suffer are those seeking asylum from horror and tyranny?

[Baroness Ludford (LD)]

My Lords, I thank the Minister for repeating the Statement. I came across an article that said:

“The longer the queue, the worse the administrative confusion, the greater the incentive is for racketeers to target their efforts on Britain. There is a direct link between Government incompetence in managing asylum cases and the surge in applications to stay here.”


This was written in 2000 by William Hague, then the leader of the Conservative Party and now of course the noble Lord, Lord Hague of Richmond. He was criticising the then Labour Government, but, in the ministerial letter we received, referring to plans to

“clear the legacy initial decision asylum backlog by the end of 2023”,

there was a complete failure to acknowledge that this legacy was created by a Tory-run Home Office, which has never got a grip over the last 13 years. Nearly 100,000 people have been waiting for a decision on their asylum claim for over six months—that is four times the number in 2019. We need a minimum service level in the Home Office.

We all want to see an end to dangerous channel crossings, but the Bill and the hullabaloo surrounding it are just more of the same gimmicky gesture politics, not the practical and sustainable solution that is actually needed. The Bill is not only unworkable but illegal and immoral. It treats people as criminals simply for seeking refuge. In the article I quoted from, the noble Lord, Lord Hague, said:

“We believe Britain has a moral as well as a legal duty to welcome here people who are fleeing for their lives.”


That “we” was the Conservative Party 23 years ago. No wonder that even some Tory MPs are now upset at the xenophobic and dehumanising rhetoric and intentions to breach the refugee convention and the European Convention on Human Rights.

In her enthusiasm to make the demonisation of refugees an election selling point, the Home Secretary appears to have broken the Ministerial Code: a fundraising email sent in her name to Conservative Party supporters disgracefully tarred civil servants as part of an “activist blob” that has “blocked” the Government from trying to stop the small boat crossings.

Why is the Bill needed, when the ink is barely dry on the Nationality and Borders Act 2022, which was supposed to be the magic solution that would stop the boats? This plan will punish the victims of persecution and human trafficking, but it will do nothing to stop the evil criminal gangs who profit from these small boat crossings. Not only are the majority of men, women and children who cross the channel doing so because they are desperate to escape war, conflict and persecution; most of them are in fact granted the protection they need. Four out of 10 people arriving on boats last year were from just five countries, with an asylum grant rate of over 80%—the Home Office recently decided to fast-track applications from a similar list of countries. How does the plan to deem inadmissible any claims from people who arrive on small boats from countries such as Afghanistan or Syria accord with these facts?

The only way to stop these dangerous crossings is to create safe and legal routes. The Government talk about such routes, but where and what are they? Will the Government commit to granting humanitarian visas to people needing to flee? We are told that the Bill will introduce an annual cap on the number of refugees whom the UK will accept, but how would that work? If the next person arriving is escaping the terrible cruelty of the Taliban or the appalling regime in Iran, will they just be refused? The number of family reunion visas issued in the year to September last year was more than a third down on 2019, so safe routes are in fact being constricted. Will the Minister assure me that the Government will commit to supporting my Refugees (Family Reunion) Bill, which recently passed this House, when it progresses through the other place?

Instead of locking up asylum seekers or forcing them to stay in hotels, will the Government commit to ending their absurd ban on asylum seekers working after they have been waiting months for their claims to be processed? If so, they could pay their way.

We are expected to proceed with a Bill of which the Government themselves say there is more than a 50% chance that it is incompatible with the ECHR. Quite how they can say they

“remain confident that this Bill is compatible with international law”,

when simultaneously believing that it is only 50% likely to be, is a mystery. How can a law actually designed to circumvent human rights possibly be fit for purpose? Lastly, speaking of human rights, can I ask for a list of countries to which people would not be returned?

[Lord Murray of Blidworth (Con)]

My Lords, it is clear that the need for reform is obvious and urgent. The problem in the channel has grown over the last two years. Since 2018, 85,000 illegally entered the UK by small boat—45,000 of them in 2022 alone. Many of them came from safe countries, such as Albania, and all travelled through multiple safe countries, in which they could and should have claimed asylum. The vast majority, 74% in 2021, were adult males under 40, rich enough to pay criminal gangs thousands of pounds for passage.

Noble Lords will not have noticed or been able to discern from the speeches of the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, any policy from either the Labour Party or the Liberal party to address the crossing of the channel. The noble Lord, Lord Coaker, suggested that the delays in the asylum process were causing the mass migration—this is simply not the case. As the UNHCR says, there are 100 million refugees in the world at the moment. This requires an urgent and sustainable solution.

The noble Lord, Lord Coaker, asked me whether the Nationality and Borders Act was not a complete answer. I can reassure him that it was never said that that Act would be a silver bullet. This Bill builds on that Act, which laid the foundations of our approach but, because the situation has got worse, we now need to go further. The Nationality and Borders Act was about changing how we processed asylum claims in the current system to streamline it and reduce late and spurious claims. It made progress, and it is right that we did that, but this is different. We are now going to move these cases out of the system entirely, so they are heard elsewhere in a safe country. Illegal entry will no longer be a route to making a claim to settle in the UK—it is only by making it clear that if you come here illegally you will not have the ability to stay here that we will stop the boats. That is a measure of compassion, because it will stop people embarking on dangerous journeys across the channel.

Furthermore, as the noble Baroness, Lady Ludford, has suggested that creating safe and legal routes is the answer, I can reply to her that it is no answer. If Parliament set a cap of, say, 30,000 that it was going to take by means of the safe and legal routes that already exist, all that would happen is that the demand would remain from those who do not fall within the cap, and the criminal gangs would still be there to feed that demand.

The noble Lord, Lord Coaker, and his right honourable friends in the other place, suggested that the answer was to put more money into the NCA to break the criminal gangs. We have already done that: the NCA funding has been doubled, but that cannot on its own be any answer. The only answer is one to be made in legislation.

For all those reasons, I do not accept the criticisms advanced by noble Lords.

National Security Bill

Baroness Ludford Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have added my name to amendments in this group. I declare my interest as a practising barrister, sometimes representing clients on legal aid. The harmony that has broken out in this afternoon’s debates does not apply to this group, although I do thank the Minister, the noble and learned Lord, Lord Bellamy, for engaging with me and others on this subject and for tabling an amendment that mitigates, to a limited extent, the mischief of Clause 89.

I will first cite some history. At the legal aid Bill’s Second Reading on 15 December 1948, the Attorney-General, Sir Hartley Shawcross, told the House of Commons that civil legal aid was so important because it would

“open the doors of His Majesty’s courts and make British justice more readily accessible to the great mass of the population who hitherto have too frequently, I am afraid, had to regard these elementary rights—as they ought to be—as luxuries which were beyond their reach”.—[Official Report, Commons, 15/12/1948; col. 1223.]

Sadly, the scope of legal aid has been much reduced in recent years by Labour Governments, Conservative Governments and by the coalition Government. But, where civil legal aid is still available, it remains a vital legal protection for individuals and their families. It is a noble scheme that goes some way, although not far enough, towards ensuring that a lack of financial resources is not a bar to access to justice. So it is objectionable in principle for the Bill to propose to remove eligibility, even subject to exceptions, for a category of people who are defined simply by the nature of the criminal offence of which they have been convicted.

Clause 89 is simply indefensible for three main reasons. First, it will apply irrespective of the seriousness of the criminal offence of terrorism of which the individual is convicted, so long as that offence is capable of being punished by up to two years’ imprisonment. The noble Lord, Lord Anderson of Ipswich, who cannot be in his place, pointed out in Committee that terrorism offences include such matters as

“inviting … support for a proscribed organisation”

and

“‘failure to disclose professional belief or suspicion about’ the commission of terrorist offences by others”.—[Official Report, 18/1/23; col. 1868.]

Now such criminal conduct is wrongful, but it may, and often does, lead to a short custodial sentence or even a community sentence. But, under Clause 89, any such conviction excludes a person from civil legal aid, subject to narrow exceptions, for 30 years, whatever sentence the court thinks is appropriate in the circumstances of the individual case. This is indefensible, and it is particularly so when, as the noble Lord, Lord Anderson of Ipswich, also pointed out, the recidivism rates for terrorist offenders are very low indeed: he gave the figure of 3%.

The second reason that Clause 89 is simply indefensible is that there is no exclusion from civil legal aid for those convicted of murder and rape, people who may receive life sentences and who normally receive very serious sentences for their offence. To single out terrorist offences, and to do so irrespective of the gravity of the individual offence, suggests to me, and I may not be the only one in this House, that the Government are more interested in political gestures than they are in pursuing any coherent principle.

The third reason that Clause 89 is simply indefensible is the one given by the noble Lord, Lord Marks: it will exclude persons from civil legal aid in cases which have no connection to the offence of terrorism of which they were convicted. A woman may be convicted of giving support to a proscribed organisation and receive a short custodial sentence or a community sentence, but 10 or 20 years later, she may be evicted, or face eviction, from her flat and face homelessness. The idea that she should be denied civil legal aid—and denied eligibility for civil legal aid—because of the terrorist conviction frustrates the very purpose of civil legal aid in a civilised society. Let us suppose the terrorist offender is beaten up in prison by prison officers—it does happen. Should he be excluded from eligibility for civil legal aid if he otherwise satisfies the relevant criteria? The idea that this proposal is brought forward by a Ministry of Justice defies credulity.

The only question in my mind is how best to remove or dilute the stain of Clause 89, and the Marshalled List contains a number of possible amendments, to some of which I have added my name: that Clause 89 should not stand part of the Bill, that it should be confined to those who are sentenced to seven years’ imprisonment or more, or that it should be confined to legal aid for a matter connected to the terrorism offence, which is the amendment preferred by the noble Lord, Lord Marks.

I am very sorry indeed that the Labour Front Bench is unwilling—as I understand it; I would welcome correction from the noble Lord, Lord Ponsonby—to support any of these amendments, and has itself tabled what can only be described as a weak amendment, Amendment 188A, which would require a review within 60 days of Clause 89 coming into force. The noble Lord, Lord Ponsonby spoke eloquently about Clause 89 in Committee; he is far too sensible and fair-minded to think personally that Clause 89 makes any sense. I assume, although I welcome correction, that the Opposition in the other place fear that they will be accused of being soft on terrorism if they support any of the substantive amendments. I think we all know what Sir Hartley Shawcross or the great Labour Home Secretary, Roy Jenkins, would have said about that.

If, as I hope, the noble Lord, Lord Marks decides to test the opinion of the House on one of these amendments, he will certainly have my support.

[Baroness Ludford (LD)]

My Lords, I can speak briefly because my noble friend Lord Marks and the noble Lord, Lord Pannick, have spoken forcefully on this matter. The amendments to remove Clauses 89 and 90 are in my name and signed by the noble Lord, Lord Pannick. I spoke at some length on this in Committee, and I believe it is a matter of principle—a very flawed principle, as the noble Lord, Lord Pannick, said—to bar anybody with a terrorism offence, however minor, from being granted civil legal aid.

The noble and learned Lord, Lord Bellamy, admitted in Committee that this proposal was “symbolic”— I think he said it more than once. In other words, it is gesture politics. The hope must be, as the noble Lord, Lord Pannick, just said, to paint those of us opposing it as somehow soft on terrorism, but I put it to the Government that they could be regarded as soft on murder, rape and sexual offences. They are apparently content that major offenders against women, of the likes of Wayne Couzens and David Carrick, variously guilty of abduction, rape and murder, could one day be eligible for civil legal aid, but not someone who is a minor offender under terrorism laws. If they try to throw at us in the Daily Mail that we are soft on terrorists, the Government ought to be prepared for a counter charge that they are soft on murderers and rapists. Given the huge public concern in recent weeks, months and years about the volume and the type of offences against women, I do not think that the Government are going to come out of this well.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, these clauses restrict access to civil legal aid for convicted terrorists, although there are exemptions to this, such as when the convicted terrorist is under 18. I welcome government Amendments 184 and 186, where the Minister has made a further concession regarding people who have been victims of domestic violence and domestic abuse.

While we support the principle that terrorists should not receive legal aid, we are concerned that application of these clauses could permanently impact those with minor offences such as vandalism. We have therefore tabled Amendment 188A in my name to create a practical mechanism to address these concerns. This would establish a statutory review of the impact on those who receive non-custodial sentences. We will not support Amendment 180 in the name of the noble Lord, Lord Marks, which would allow terrorists to receive legal aid if their applications relate to a non-terrorism offence. We believe that these most serious offenders who commit attacks on the UK should not receive support, regardless of the nature of their later civil proceedings.

There is a point of principle here, which is that terrorism is a uniquely targeted offence against the British state, and we think that that needs to be recognised. However, there are the points of the low-level offences, which I brought to the attention of the Committee, and there is also the point that was acknowledged by the Minister about people who are victims of domestic abuse. So, there are principles here, but there is a clash of principles.

--- Later in debate ---

[Baroness Ludford (LD)]

Will the noble Lord explain on behalf of the Official Opposition why, if terrorism is a unique crime against the state, he does not have a similar view of unique crimes against the integrity of the person, the integrity of women, that we have seen in the appalling crimes that have, thankfully and at last, led to convictions of the likes of Wayne Couzens and David Carrick? Those are offences against the integrity of the person, the integrity of women and the integrity of society. Why would they not be considered on a similar level to some terrorist offences, without giving any quarter to terrorism whatever, but on the lesser scale of terrorism? I think his “uniqueness” argument really demands justification.

Refugees (Family Reunion) Bill [HL]

Baroness Ludford Excerpts

3rd reading
Friday 3rd February 2023 Lords Chamber

Moved by

[Baroness Ludford]

That the Bill do now pass.

[Baroness Ludford (LD)]

With noble Lords’ indulgence, I would like to make a few remarks. I warmly thank all who have supported this Private Member’s Bill and the cause of refugee family reunion in the last year. I principally thank my noble friend Lady Hamwee, who could not be here today but who made the first two attempts to get a version of this Bill on the statute book, who encouraged me to pick up the relay on my first—and now second—attempt and who inspires me generally on asylum and immigration issues. I also thank my noble friend Lord Paddick, who leads for these Benches on justice and home affairs matters and is steadfast in his championing of fairness and reasonableness in Home Office affairs. I also thank my honourable friend Tim Farron in the other place, who will seek to take this Bill, if approved today, through the House of Commons, as he sought to do last year in its previous iteration before it was defeated by Prorogation.

Colleagues in this House from other Benches have also been stalwart in their support of family reunion for refugees. The noble Lord, Lord Dubs, is of course in the top rank, but I am also very grateful to others who spoke up at Second Reading of this Bill last July and/or when we debated the same issue in Committee on the Nationality and Borders Bill almost exactly a year ago: the right reverend Prelate the Bishop of Durham, the noble Baronesses, Lady Bennett of Manor Castle, Lady Wheatcroft and Lady Jones of Moulsecoomb, and the noble Lords, Lord Kennedy of Southwark, Lord Hylton and Lord Coaker. I also thank Ministers who have engaged on this issue—although, so far, not very fruitfully.

Sadly, I do not have time to cite those who contributed on my previous Bill or on my noble friend Lady Hamwee’s two attempts, but it illustrates that there is widespread support for the cause. I also thank all those NGOs and their staff who have given such valuable briefing and who work tirelessly to bring families together, in particular: the British Red Cross, the Refugee Council—I specifically namecheck Jon Featonby, who has moved from the former to the latter—Safe Passage, Refugee Action and, indeed, the whole Families Together coalition. And there are others that I do not have time to mention.

The reasons that motivate them, me and others in the House are both humanitarian and practical. It is both compassionate and hard-headed, not least for the taxpayer, that refugees have the best possible chance to settle, thrive, integrate and stand on their own feet. That means, among other things, having their family with them instead of being distracted by terrible worry about what is happening to their loved ones. The case for easing refugee family reunion is not dissimilar to the case for allowing asylum seekers to work. It promotes dignity and well-being while saving the taxpayer money—a good Conservative case, as articulated repeatedly and so well by the noble Baroness, Lady Stroud.

The key features of this Bill are to relax the current restrictive and inaccessible discretionary rules by allowing adult dependent children to join family in the UK, to allow siblings to sponsor a brother or sister, to permit lone children to regroup with family and to allow legal aid to be claimed for the process. The Government claim that allowing more people to come on safe and legal routes would increase demand for the criminal services of smugglers. This makes no sense to me or to other supporters of an expansion of safe routes such as family reunion. The vast majority of those who make dangerous journeys have no choice. Indeed, the number of family reunion visas issued in the year to September 2022 was 36% down on 2019, so safe routes are being constricted. There is, rightly, a generous definition of “family” for Ukrainian refugees—much more generous than for other refugees—and we do not see them crossing the Channel in small boats. There has to be a connection.

The Government are planning yet more new legislation. If they want to treat even more harshly those who arrive irregularly, they should also allow better safe routes and incorporate the provisions of this Bill into their own new Bill.

[Lord Blunkett (Lab)]

My Lords, I speak very briefly to congratulate the noble Baroness and those who have worked with her on getting this far with the Bill. I just draw to the attention of the House that the Justice and Home Affairs Select Committee of your Lordships’ House, led admirably by the noble Baroness, Lady Hamwee, will in a few weeks’ time be producing a detailed report in relation to family migration rules more generally, including, of course, the content of this Bill. I hope that it will help with the debate in the other place and that people will take very seriously both the content of this Private Member’s Bill and the findings of the Select Committee.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I too thank the noble Baroness, Lady Ludford, for her remarks and thank all those who contributed in previous debates on the Bill. The Government’s policy already fully recognises that families can become fragmented because of the nature of conflict and persecution, and the speed and manner in which those seeking protection are often forced to flee their own country. Our family reunion policy allows those recognised as refugees or granted humanitarian protection in the United Kingdom to sponsor their immediate family members to join them here, if the family union was formed before their refugee sponsor fled their country of origin. This has seen more than 43,700 individuals reunited with their refugee family members since 2015. This is a significant number, which highlights the policy’s success as a safe and legal route for families to reunite in this country.

I remind noble Lords that this Government fully support the principle of family unity and share the concern for those families who have been separated by conflict or oppression. It is for precisely this reason that the Government already have a comprehensive framework for reuniting refugees with their families here in the UK. I remind noble Lords that this framework is already set out in the Immigration Rules and in our refugee family reunion policy, which negates the need for the Bill and is the reason why the Government do not support it.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for replying. I am obviously disappointed but not surprised that the Government do not support the Bill, but I am afraid I must dissent from his assertion that the Government fully support the principle of family unity, because that really is not translated into policy and practice. Yes, he cites the number of family reunion visas since 2015, but it is difficult and in some cases costly and long-winded to obtain one, and it is unjustifiable to put all these barriers in the way. The rules are unreasonably restrictive and would be much improved with the Bill, so I live in hope that, one day, this or another Government will see the light and understand that it is not just compassion but hard-headed realism and cost-effectiveness that drive the reasoning of the Bill and other suggestions for improved, easier family reunion.

Bill passed and sent to the Commons.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

Moved by

[Baroness Ludford]

76: Schedule 7, page 137, line 14, at end insert—
“(2A) The requirement under paragraph 1(2)(c) must not exceed a 14-hour period.”Member's explanatory statement
This amendment is based on a recommendation of the JCHR. It is designed to ensure that rights under Article 5 of the ECHR are not infringed, and therefore it sets a 14-hour limit on the time that the subject of Prevention and Investigation Measures could be required to remain in their residence.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, in moving Amendment 76, I will also cover the other three amendments in my name—I am afraid I dominate this group 1, which is all concerning proposals made by the report from the Joint Committee on Human Rights.

Part 2 of the Bill introduces state threats “prevention and investigation measures”. I am not sure whether we are calling them STPIMs or just PIMs. Anyway, these are a set of restrictive measures that the Secretary of State could place on individuals who they reasonably believe are involved in foreign-power threat activity. Failure to comply with the measures imposed would be a criminal offence. Of course, these measures largely mirror the legislative scheme of the TPIMs—terrorism prevention and investigation measures—that can be imposed on those suspected of involvement in terrorist-related activity. There is an awful lot of experience, particularly on the Benches opposite, on that subject.

The intention behind the measures is that they should be applied to people believed to pose a significant threat but who could not be prosecuted. In fact, according to the Explanatory Notes, PIMs would similarly represent

“a measure of last resort”

applicable to those cases that, despite the wide range of new offences introduced by the Bill,

“cannot be prosecuted or otherwise disrupted.”

Clause 37 grants the Secretary of State the power to impose PIMs, while Schedule 7 sets out a wide range of requirements and restrictions that can be included, such as

“a requirement to reside at a specified residence”,

overnight curfews, exclusion from certain places or buildings, restrictions on travel, work and study, contact with others, use of phones and computers, et cetera. There is also daily reporting to a police station and GPS monitoring. So far so familiar, really, and there is a clear parallelism with TPIMs.

Amendment 76 specifically concerns the worries about the right to liberty guaranteed by Article 5 of the European Convention on Human Rights. It is the same, familiar range of concerns regarding ECHR and HRA rights—especially Articles 5, 6 and 8. Amendment 76 focuses particularly on Article 5, where concerns arise from the imposition of curfew measures. It has been established over many years of litigation arising from TPIMs—and, before that, control orders—that requiring a person to remain in their home for more than 16 hours per day is, rather unsurprisingly, likely to amount to a deprivation of liberty under Article 5. Curfews that last 16 hours or less could still engage Article 5 when coupled with other restrictive measures, particularly those causing social isolation such as separation from family.

The ECHR memorandum accompanying the Bill recognises the potential for Article 5 to be violated by a PIM, but it states that

“there are protections in place”

to prevent this, specifically the obligation on the

“Secretary of State … to act compatibly with the Convention rights”

and the same obligation applying to the courts. It is asserted that the judicial review process built into the Bill should serve as a protection against unjustified deprivations of liberty. Such protections, however, depend on the Human Rights Act which, under the Bill of Rights Bill as introduced, will be repealed and replaced. Many of us fear that the Bill of Rights Bill threatens to weaken the courts’ ability to hold public authorities to that Article 5 obligation.

The Joint Committee on Human Rights concluded that the simplest way of introducing

“A more effective protection against interference with Article 5 rights would be to include within the National Security Bill a strict limit on the number of hours for which a subject of Prevention and Investigation Measures could be required to remain in their residence”.


This amendment reflects the JCHR report’s suggestion of a maximum of 14 hours per day. The Government may have other ideas, which will be interesting to hear.

I will now speak to Amendment 77. The conditions in Clause 38, which focus on “foreign power threat activity” are defined broadly and include some behaviour which may not currently even justify arrest. In these circumstances, none the less, this Bill proposes the imposition of potentially long-lasting highly restrictive measures on an individual. While the measures are called “prevention and investigation measures”, the investigation element appears extremely limited. Clause 44 would require the Secretary of State to

“consult the chief officer of the appropriate police force”

regarding whether a prosecution is possible before imposing a PIM and for the police to “keep under review” the investigation of the individual’s conduct with a view to their prosecution for the duration of the PIM—which can be renewed for up to five years. But the Bill would place no obligation on the Secretary of State to take, or refrain from, any particular action after consulting with the police, so it appears to have no real consequences. It also does not specify any duty on the police to take action beyond keeping investigation under review; it does not actually require investigation.

Amendment 77 proposes that, given the intention for these measures to be used in cases that cannot be prosecuted or otherwise disrupted, it seems reasonable to put in a requirement that, having consulted with the police, the Secretary of State gets confirmation from them that prosecution is not realistic or feasible before a PIM is imposed. That appears to be consistent with the policy justification of this clause.

The conclusion is that the JCHR recommends that the Bill is amended to include such a provision. My other two amendments in this group are consequential, so I will close here. I am very interested to hear other views. I beg to move.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am afraid I do not have that information to hand. My conjecture would be that it is fewer, but I will confirm the position and write to the noble Lord.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for that reply. I also thank the noble Lord, Lord Coaker, for calling these amendments simple but important. I am grateful for his support.

On Amendment 77, I note the Minister’s assurance that he believes that the current drafting would achieve the aim of pursuing the possibility of prosecution, but obviously that incorporates not only a static but a dynamic possibility. I think the fear of the JCHR is that the wording, certainly in Clause 44(5), does not really imply any ongoing investigative mission, as it were. Saying “If we can prosecute, we will” has to mean that a certain re-evaluation takes place. But that is not all that Clause 44(5) says. It says that the chief officer of police must

“secure that the investigation of the individual’s conduct … is kept under review”.

It does not actually require any investigation, or any periodic investigation, so I am not really persuaded, despite the Minister’s reassurances, that that sense of a dynamic possibility of keeping the potential for prosecution under if not a permanent but certainly a periodic review is incorporated into the drafting of the Bill. We may come back to this at a later stage, but I am not entirely persuaded by the Minister.

--- Later in debate ---

Moved by

[Baroness Ludford]

80: Clause 54, page 38, line 22, after second “of” insert “Part 1 and”
Member’s explanatory statement
This amendment is recommended by the JCHR and would extend the review function of the Independent Reviewer to cover Part 1 of the Bill in addition to Part 2.

[Baroness Ludford (LD)]

My Lords, I assure the Committee that this will not be a one-woman show all afternoon. I can be very brief on Amendment 80 because we will be hearing about Amendment 81.

The Bill establishes an independent reviewer in relation to PIMs under Part 2 and the JCHR felt that this, while a welcome additional safeguard, was too narrow and it was unclear why the independent reviewer’s role should be restricted to Part 2, because there are also significant concerns about how powers under Part 1 will be exercised. So we made a simple proposal, reflected in Amendment 80, recommending that the independent reviewer’s role should be extended to cover Parts 1 and 2 and that the Government should consider whether it could cover other core national security legislation.

As I say, I can be very brief because I tabled Amendment 80 before seeing Amendment 81, and we are about to hear from the heavyweights on this subject that they propose to make it even broader under further parts of the Bill. So I beg to move Amendment 80 but do not expect to say much more about it.

[Lord Anderson of Ipswich (CB)]

My Lords, my Amendment 81 is a bit wider than that of the noble Baroness, Lady Ludford, who is certainly a heavyweight in my book. I agree with what she has had to say about that.

Post-legislative scrutiny can take many forms, but where powers are exercised on the basis of secret intelligence, the options are more limited. Select Committees can do little, because they lack access to classified information. The Intelligence and Security Committee has that access, but its remit is focused on the intelligence agencies themselves. It is not equipped to review the operation by police and prosecutors of the new criminal offences in Part 1 of the Bill—or the new procedures in that part—or, indeed, to concern itself with the questions of damages and legal aid in Part 4.

The Independent Reviewer of Terrorism Legislation—its origins dating back to the 1970s—is the solution arrived at in one part of the national security landscape. The independent reviewer is an independent person with full security clearance—but without bureaucratic apparatus—reporting to government. Reviewers serve Parliament and the public by reviewing operational matters which, for national security reasons, neither they nor the usual inspectorates can scrutinise themselves. Their findings are often referred to by the courts and their recommendations taken on board by police, agencies and government.

The independent reviewer has spawned two imitators, in Australia and, more recently, in Ireland. I mention that because the independent monitor in Australia and the planned independent examiner in Ireland—the Bill has recently been published—are each entrusted with scrutinising the operation of national security law in its entirety, not just counterterrorism law. The same principle should apply here. The use of laws governing hostile state activity can be both as secretive and as sensitive as the use of laws against terrorism. That, no doubt—as the Minister said in the last grouping—is why the Government have already agreed to extend the jurisdiction of the independent reviewer to Part 2 of the current Bill, which is all about foreign power threat activity rather than terrorism.

Equally compelling, I suggest, are the arguments for independent review of Part 1. Part 1 is a complete recasting of the law against espionage, sabotage and acting for foreign powers. The offences and police powers are novel and untested; the risk of unintended consequences must be high. The offences will presumably be the subject of prosecutions. However, there is no mechanism for systemic oversight, either of the offences or of the far-reaching powers of entry, search, seizure and, in particular, detention, which are the subject of Clause 6, Clauses 21 to 26 and Schedules 2 and 6 to the Bill. Powers such as these can be controversial in their application: they are the meat and drink of the independent reviewer’s work.

Part 4 is all about terrorism and so falls even more naturally within the existing powers of the independent reviewer. History has shown the value of the scrutiny of the independent reviewer, not least in the years after 9/11, during which my noble friend Lord Carlile performed the role with such distinction. It is all the more necessary in this ever-questioning age. Indeed, something of this nature is a prerequisite for what has been called the “democratic licence to operate” that our secret state requires. The current independent reviewer, Jonathan Hall KC— who performs the role with imagination and acuity—has been consulted on this amendment. He is the obvious person to review Part 4 because of the terrorist connection. I suspect he could take on Parts 1 and 2 as well: our counterterrorism law is neither novel nor, for the most part, as controversial as it once was. But in case his apparently infinite energy should ever flag, my amendment—inspired by Clause 54, which it replaces—gives government the flexibility to appoint a different person to review Parts 1 and 2.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

We invite the proposers of the amendments not to press them; further information will follow.

[Baroness Ludford (LD)]

Well—my noble friend Lord Purvis of Tweed asked the obvious question of what happens next, and we got a rather obscure answer. I hope the noble Lord, Lord Anderson, will be able to tease out a little more about what the next steps might be.

I thought the Minister started on a rather encouraging note. I thought he was going to say, “Yes, Amendment 81 is jolly good, and we accept it”. I would imagine that it has been the subject of discussions and exchanges and so on, but the promise that came from the beginning of the Minister’s remarks was not really realised, or not realised at all.

In breathless anticipation of what the noble Lord, Lord Anderson, is going to say—I hope that I am not taking his name in vain, as it were—I beg leave to withdraw Amendment 80. I hope, however, that this is not the end of the discussion on Amendment 81.

Amendment 80 withdrawn.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, my noble friend Lord Hacking must make sure that he is here on the Wednesday we come back; I am sure that we will start with the debate he referred to, which will probably be quite a significant and long one. Just to give him time and to get my retaliation in first, I tell the Minister that I have read the relevant bit of Schedule 6—paragraph 1(2)—which he will say makes my amendment irrelevant because it is covered there. I know that; I have put this down so that we can have a debate on it.

In moving my Amendment 60, I recognise the very important issues raised by Amendments 61 and 63 from the noble Baroness, Lady Ludford. We are returning to Schedule 6, which deals with detention under Clause 25, “Arrest without warrant”, which is a significant power. We accept that there is clearly a need for individuals to be detained under the offences in the Bill, but I have a number of questions to seek clarification from the Minister—hence my Amendment 60.

Committee allows us to look in detail at various sections and parts of the Bill and seek clarification on what the Government mean by certain phrases. That is of particular interest because many people read our deliberations and they are often used in the courts to try to inform judgments. I hope the Government will bear with me if some of my questions appear to have obvious answers.

Clause 25(1) states:

“A constable may arrest without a warrant”.

Is that only a constable of a police force, not any other organisation? Is it all UK police forces? Does it include other forces, for example a constable of the MoD police, the British Transport Police or the Civil Nuclear Constabulary? Are there any special arrangements for Northern Ireland, given that the Bill says that any officer of any police force can use this power in any part of the United Kingdom? If they are not in uniform, do they have to produce their warrant to show who they are?

In Clause 25(6), the original detention of 48 hours can be extended by a review officer. How many times can this be reviewed and for how long can someone be detained? Is there a maximum limit or can they be renewed on multiple occasions? At what point would there be any judicial involvement in the process to agree any continuing detention beyond the original 48 hours?

Can the Minister confirm that my Amendment 60 is not needed, as I said at the beginning, because paragraph 1(2) of Schedule 6 says that detention has to be in

“land or a building in the United Kingdom which is owned … by a police force.”

Does this include all types of police force? Would it include the buildings and lands of the British Transport Police, the Civil Nuclear Constabulary, the MoD police, et cetera?

Can the Minister also confirm on the record that no person arrested without warrant under Clause 25 can be held in any UK buildings or land in any security service building outside the UK, any Armed Forces facility or land outside the UK, or any other such facility? There is a need for some clarification here, in the sense that UK military bases are sometimes referred to as “sovereign territory”. Does that imply that they are in the UK and could therefore be used, even though they are not within what one would normally assume to be the borders of the United Kingdom?

Can the Minister confirm or otherwise whether Clause 25 can be used outside of the UK to arrest a UK national who is believed to be involved in a foreign power threat activity within the United Kingdom? If so, how does that actually work? If a UK national is arrested abroad because of the threat they have posed through an activity within the United Kingdom, how is that person then detained and brought back, or can the offence not be used against a UK national who is abroad even if they are believed to have committed an offence when they were within the United Kingdom?

I will leave the noble Baroness, Lady Ludford, to speak to her amendments, but they address the idea that, in a democracy, the proper treatment of detainees must not only be done but be seen to be done. Which body or independent reviewer is or will be responsible for oversight of the operation of Clause 25 and Schedule 6? As I have said, these Benches accept the need for such arrangements, but clarity of purpose and transparency are essential when dealing with issues of arrest and detention. Our democratic traditions demand that we do so in this area, as much as anywhere else. With that, I beg to move.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.

We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.

My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.

[Lord Hacking (Lab)]

My sympathy lies with you.

[Baroness Ludford (LD)]

And mine with you. I look forward to the debate on Clause 28.

The Government’s response, which we finally received, does not seem very strong. It says:

“The Government considers that, if the matters relate to the proceeds from crime from state threats activity, in most cases this will be highly sensitive information and every effort should be made to prevent the suspect from having any knowledge that our law enforcement agencies are aware of where these proceeds are located.”


I may have missed something, but while the whole Bill is about national security, I am not sure that the condition that the proceeds from crime arise from state threats activity is there. Maybe it is in Clause 25. I ask the Minister to follow up on paragraph 88 of the Government’s response to clarify whether I am being insufficiently on the ball and whether that further condition that the proceeds of crime arise from state threats activity is there. Otherwise, it does not seem to us pertinent that you should be able to withhold information, stop access to a solicitor and stop allowing people to let others know where they are if it is specifically about asset recovery. Important though that objective undoubtedly is, this is a National Security Bill.

On Amendment 63, the contention I make, inspired by the JCHR, is that the reviews of detention without warrant should be able to be postponed only for well-defined and justified reasons. At the moment, it can happen where

“no review officer is readily available”

or

“it is not practicable for any other reason to carry out the review.”

That seems to us illegitimately broad.

In their response, the Government give an example, saying

“these provisions ensure a wide range of instances”—

that is certainly true—

“which might result in a review not being able to be carried out are covered – for example, if the suspect is undergoing medical treatment. It would be impossible to outline every scenario that may impact a review … therefore this approach”,

which I would describe as wide,

“is preferable.”

The example of a detainee undergoing medical treatment does not cover or justify the “no review officer is readily available” reason. It might fall under the other arm—“it is not practicable for any other reason to carry out the review”—if the detainee is ill and is being supported with medical treatment. However, postponing a review because no review officer is readily available is based on a staffing matter; the detainee really should not be put in this position because somebody—the Home Office, the MoJ or whoever—is unable to supply a police officer or whoever else is in charge to carry out the review.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions. I speak first to Amendment 60, tabled by the noble Lord, Lord Coaker. First, I thank him very much for the frank way in which he posed his questions, and I am glad to say that I can answer the first tranche of his questions simply with yes. I will set out in more detail why that is.

The amendment relates to the power for the Secretary of State to designate sites where those arrested under Clause 25 can be detained. There was a lively debate on this topic in the other place, which led to the Government carefully considering this issue and amending the Bill to provide for the sites to be designated only if they are in the UK. As the noble Lord observed, this provision can be found at paragraph 1(1) of Schedule 6, and I can confirm that is indeed the case. That states that the power

“may be exercised only in relation to land or a building in the United Kingdom which is owned or controlled by a police force”—

so that is any police force.

The Government consider that the amendments to Schedule 6 in the other place have sufficiently clarified the need for and the intention behind this power and I understand that this satisfies the noble Lord’s concerns regarding where the sites may be located. Just to confirm, the power therefore extends to the MoD Police, the British Transport Police, ,the Civil Nuclear Constabulary, et cetera, and there are no special arrangements in relation to Northern Ireland.

Clause 25(6) confirms that a 24-hour detention period can be extended by a reviewing officer to a maximum of 48 hours. The first review is as soon as reasonably practicable after arrest and then this must be reviewed at least every 12 hours, obviously up to the maximum.

The noble Lord mentioned arrest abroad. UK constables do not have the power of arrest abroad and the powers therefore do not therefore extend to Armed Forces police abroad. Any relevant people would be arrested by local officers and extradition would be arranged in the conventional way.

I will return to the topic of oversight later but I can confirm that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a statutory role in inspecting all police forces under Section 54 of the Police Act 1996, about which the noble Lord knows. That body regularly inspects all aspects of policing, including places of detention. Given that any sites designated under this power will be under the control of the police, they would automatically be subject to their inspection, and the Government therefore believe that there is no need to include a further statutory inspection regime as this will be duplicative.

I can confirm that it was never the Government’s intention to designate sites located outside the UK. This amendment clarifies the policy position. In Northern Ireland, the Police Service of Northern Ireland is subject to annual statutory inspection by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services under Section 41. Similarly, in Scotland, His Majesty’s Inspectorate of Constabulary in Scotland provides independent scrutiny of Police Scotland and the Scottish Police Authority. We do not consider it reasonable to interpret this to include locations under the temporary control of a police force, such as a crime scene.

Amendments 61 and 63 in the name of the noble Baroness, Lady Ludford, are to Schedule 6. They seek to implement two of the recommendations from the Joint Committee on Human Rights’ report on the Bill. The first amendment seeks to remove the ability for the police to delay a suspect’s access to certain rights while being detained under the arrest power in the Bill for solely asset recovery reasons; I will address this first, if I may.

If the police have intelligence to suggest that a detained suspect has property that is connected to suspected criminal activity—for example, cash—and might use their permitted communication with a named person or their solicitor to ask them to take steps to move cash or property on the suspect’s behalf, to hide evidence or otherwise ensure that the asset cannot be seized by the police, it is clearly right that the police should be able to delay that communication taking place while they seize those assets, gather associated evidence and ensure that crime does not pay. I believe that the safeguards written into the Bill as drafted are sufficient when delaying these rights. The direction to delay must be given by a senior police officer, who must have reasonable grounds to believe that allowing access to these rights at that point in the investigation will hinder recovery of the property.

Additionally, it is written into the legislation that the suspect must be allowed to exercise both these rights within the first 48 hours of detention, so there will not be a situation where a suspect is detained for longer than this without exercising these rights. More details on this process will be contained in the code of practice made under this part of the Bill, including the fact that any delay in these rights must be recorded in the custody record and the suspect must be informed of the decision. Similar provisions can be found in PACE Code H, which operates for detentions under the Terrorism Act 2000.

I turn to the noble Baroness’s second amendment—

[Baroness Ludford (LD)]

I apologise for interrupting but, before the Minister moves on to Amendment 63, can he explain something? It may just be my inability to see it but, in their response, the Government refer to

“proceeds from crime from state threats activity”.

I have not been able to find that phrase in the text of the Bill; it just refers to how there can be a delay in informing a family member or notifying a solicitor if

“the detained person has benefited from their criminal conduct”

and the recovery of the asset “will be hindered by” those rights being exercised. Where does it refer to proceeds of crime arising from state threats activity, so that one can see it being brought within the national security purview? I cannot see that in the text but I am sure that the Minister can point out how the response is justified on that point.

[Lord Murray of Blidworth (Con)]

Forgive me; the answer is that, in the text of the Bill, this is not limited to state threats proceeds of crime. The operation of the Bill is as I just described in my speech and, as I have already said, its safeguards are built into the statute itself.

The second amendment to Schedule 6 tabled by the noble Baroness seeks to remove certain circumstances whereby a review of a suspect’s detention may be postponed. There are various reasons why a review may need to be postponed. For example, the suspect may be receiving medical treatment and be unable to make representations on their continued detention to the review officer. It may be that there is a delay in the review officer arriving at a custody suite, or they may be reviewing another suspect’s detention if multiple arrests have been made in a short period.

It is impossible to predict all the possible circumstances and make specific provision for them in the legislation. The legislation does not provide for the review to be permanently postponed. It is required to be carried out as soon as possible, but this proposal provides for some operational flexibility. The code of practice—which, as I have said, the Government will publish in due course—will provide further information on reviews of detention, and we will state the requirement for any postponement of detention reviews to be recorded on the custody record. In the meantime, similar provision again can be found in the Police and Criminal Evidence Act code of practice code H, which operates for detentions under the Terrorism Act 2000.

With that, I conclude.