Nationality and Borders Bill

Baroness Ludford Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Horam (Con)]

My Lords, I agree with the noble Lord, Lord Dubs, that there has to be some shared responsibility in Europe. In particular, his point about Greece, Italy and Spain was well made. They have had to bear the brunt of the inflow of asylum seekers to a very difficult extent, and I understand their problems. The noble Lord was also right that, whatever other solutions may be forthcoming on this very difficult issue, we will eventually have to have some agreement with the French. I am rather hopeful that, with the departure of the noble Lord, Lord Frost, we may have a better chance of reaching agreement—I say that with no malice to the noble Lord, Lord Frost, who I am sure did a very difficult job his way, but none the less, the fact that he has gone seems to me to be rather good news from the point of view of having a rather more diplomatic approach to France. I am glad that the Foreign Office in particular may now be in charge of that. I am sure that the noble Lord, Lord Kerr, will agree that it is probably better for the Foreign Office to have more say in this matter than under the previous arrangements.

What I am concerned about reflects what the Chief Whip said earlier on. Clauses 14 and 15 seem to do no more than bring into British law what we already had when we were in the European Union—that is all they do—using the Dublin regulations and the Spanish protocol. This is nothing more than a transfer. We have all the rights that we enjoyed when we were members of the European Union to take account of particular circumstances and difficulties which people may have in getting evidence and so forth. All these fairly extensive amendments are already taken account of by our existing rights, so I do not see how we can spend very long on these clauses, given that they really do no more than a transfer job.

[Baroness Ludford (LD)]

My Lords, I do not think that the noble Lord is right about EU arrangements. I remember as an MEP fighting hard on the inadmissibility provisions in EU directives. On the Dublin arrangements, my understanding is that the UNHCR is satisfied that those arrangements were compliant with the refugee convention. I contend that Clause 15 is not, hence I have put my name to some of the amendments in this group. My noble friend will propose that Clause 15 be removed altogether, as it fails to recognise the need to share asylum responsibilities with other countries in order for the international system to work effectively, but at least some changes to the clause are necessary, and so I have co-signed the amendments suggested by the JCHR, tabled in the name of the noble Lord, Lord Dubs.

Amendments 69, 70, 71 and 75 all seek to restrict and improve the operation of the scheme proposed in Clause 15. I also support Amendment 68, and convey the apologies of my noble friend Lord Oates, who has a conflict with other business. Clause 15 is about proposals whereby the UK would attempt to persuade some other country to take responsibility for the asylum applicant if it considered that there was a connection to that state, broadly defined, or even if there was no connection at all.

Amendment 69 seeks to ensure that the definition of “safe third State” means it affords the protection and rights to which the person is entitled, so there is no real risk of them experiencing persecution, a violation of their human rights or refoulement, and that there is access to fair and efficient asylum procedures and refugee convention rights. Amendment 70 seeks to ensure that any removal should be only to a state with which the person has a connection. Amendment 71 requires that, unless formal and legal binding return arrangements are in place with the state in question—such as was the case with Dublin, which is why the UNHCR gave it its blessing—and removal takes place within a reasonable period. Absent those conditions, there must be no declaration of inadmissibility and the claim must be considered in the UK. Amendment 75 removes and rejects the suggestion that the UK can remove a claimant to a country in which the UK Government think it would have been reasonable for them to have made a claim, even if they had never visited that country.

As I said, even if these four amendments were adopted, Clause 15 would still be flawed. It would create yet greater delays, backlogs and costs in the asylum system. As we keep saying, the Home Office says the system is broken yet it wants to shoot itself in the foot by having ever-more complicated and long-winded procedures. It would also create greater anxieties for claimants and disruption to the international system. Therefore, Clause 15 must be at least amended, if not removed.

[Baroness Chakrabarti (Lab)]

My Lords, unsurprisingly, I agree with everyone who has spoken so far except, I am afraid, for the noble Lord, Lord Horam. This is why: we are out of the EU now and have taken back control of our borders and laws. This is the Government’s policy. We are no longer in this family of nations, this bloc called the EU. Therefore, on what logical basis should we be saying that, by definition, we will never consider a claim made by an asylum seeker from that group?

It is one thing when you are in the EU to say that we do not need to be taking refugees from the EU because there is free movement in the EU and we are part of that bloc. You might well say that it will be inadmissible and that we do not consider refugee claims from within that family of nations of which we are a part, but we are not in it anymore. We have taken back control. Therefore, we are no longer able to assert pressure on others in that group to buck up their ideas about human rights or to threaten the Hungarians with being ejected from the EU if they do not sort out their human rights record. We do not have that leverage anymore. Therefore, it is our obligation as global Britain, as great believers in human rights and a signatory to the refugee convention, that if Hungarians are being persecuted we will consider their claims for asylum because we are better than them and we have taken back control in a lovely global Britain sort of way. It is totally illogical for Clause 14 to be part of the Bill.

More generally, the noble Baroness, Lady Ludford, made an important point about complexity and efficiency. In an earlier group, everyone in the Committee agreed that decision-making needs to be faster and better. That is in everybody’s interest, whichever side of the argument we are on. Creating lots of convoluted provisions about what is inadmissible, before you even consider whether someone is being persecuted, will only make life harder for caseworkers in the home department. I have seen Governments of both persuasions do this over the years. They think they are making it easier, but they actually make it harder by creating more convoluted hoops for people to jump through before their claim is even considered. It is better to have a clean slate and to consider somebody’s circumstances: do they qualify for asylum or not? It would be much easier without all these hoops, so Clauses 14 and 15 should go.

Just consider the claims: if countries are safe, they are safe. If people are not telling the truth, test their credibility and make that decision. Of course, I agree with everything my noble friend Lord Dubs said about safe countries, who has or does not have an association with one and the Government making the decision for them on a spurious basis.

Finally, I agree with the noble and learned Lord, Lord Etherton, it is a well-established principle of refugee convention jurisprudence the world over that you do not have to be persecuted just by agents of the state. States have a duty to protect all the people in their state. If they do not do it, there can be behaviour and persecution by non-state agents within that territory. If the state is not offering protection, if there is no effective rule of law, it is not enforcing the criminal law and is allowing Roma or gay people or whoever to be persecuted by fascist skinheads in Hungary or whatever it is, that is persecution for the purposes of the refugee convention.

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[Lord Kerr of Kinlochard (CB)]

No other country is in this position because other countries believe that the refugee convention means what it says. I am uneasy, and I think the noble Lord, Lord Rosser, must be right, but what makes this particularly peculiar is that we are considering inadmissibility here. Suppose there were an agreement in place. Suppose we were handling a case—the Minister says that it is best done case by case—but we have not done anything except say, “This is inadmissible.” We do not know anything about this chap. He has not had an appeal turned down and has not been categorised in group 1 or group 2; he has simply been declared inadmissible. What does the diplomatic post in the intended recipient country have to go on?

[Baroness Ludford (LD)]

Surely the noble Lord, Lord Rosser, is right: there is no realistic possibility. The Minister keeps “not confirming” that there are no return arrangements in place yet; she lives in hope, but the reality is that there are none and it seems unlikely that there will be any in the near future. I know there are hopes for one with France after the presidential election; well, good luck with that.

The Government wanted Brexit, they got Brexit done and Brexit meant that we no longer enjoy the Dublin regulation. Realistically, the countries that she is talking about sending people back to are mainly EU countries. Frankly, the chances of having a readmission agreement with the EU are for the birds, so we are going to be seeking bilateral agreements—and none is in prospect. So Clause 15 is indeed basically window-dressing.

The noble Lord, Lord Rosser, mentioned that apparently 6,500 cases have been declared inadmissible. All we do by kicking the can down the road is create more people waiting, more people demoralised and more work for the Home Office. It is all completely unrealistic.

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[Baroness Ludford (LD)]

My Lords, I will speak to the five amendments in this group—Amendments 83, 88, 90B, 95A and 137, and the question of whether Clause 25 should stand part—all of which I have co-signed or are in my name. The four I have co-signed are inspired by the Joint Committee on Human Rights and are in the name of the noble Lord, Lord Dubs. He has had to leave and has asked me to give his apologies.

The provisions whereby the presentation of evidence, after a date specified by the Home Office or in a priority removal notice, is required to be treated as damaging to credibility or to be given minimal weight are unfair, unjustifiable and should be removed. I agree with everything the noble Lord, Lord Coaker, said.

I have also tabled Amendments 90B and 95A in the alternative, as it were. Under Clauses 21 and 25, the decision maker on priority removal notices or in an asylum or human rights claim would at least be obliged to consider whether the presumption of damage to credibility was fair, rather than looking solely at whether there were good reasons for the delay. Taking lateness into account should be rejected if it would be unfair.

The motivation for all these amendments is fair access to justice—both to comply with the European Convention on Human Rights and, as set out in Amendment 137 about removal notices, to uphold a common-law right to access justice. Yesterday, I had the pleasure of being at the Joint Committee on Human Rights session at which the noble Lord, Lord Wolfson, gave evidence. We discussed having the common law as an inspiration, as well as the ECHR, in the application of human rights. I am sure the noble Lord will be able to tell me that the Government at least accept Amendment 137.

I do not need to say more because the noble Lord, Lord Coaker, put it very well. To say that evidence is not convincing is one thing; to say that, because it has not been submitted by date X it is incredible or has no weight, is putting process over substance.

[Baroness Chakrabarti (Lab)]

My Lords, I shall speak against Clause 25 standing part. I agree with so much of what has already been said. This is a particularly tawdry little clause in an outrageous Bill, which, as we have heard, has been slammed by UNHCR, the custodian of the refugee convention, by the JHCR, Amnesty International, Human Rights Watch and everybody, it seems, except noble Lords opposite.

My noble friend Lord Coaker need not apologise for not being a lawyer. It is not necessary to be a lawyer to see how tawdry Clause 25 is and how it absolutely puts process over substance.

This area of the law is not about parking regulations, or the tax owed to the Revenue or even major civil or commercial litigation between powerful opposing forces. This is the David and Goliath situation referred to by the noble Baroness, Lady Hamwee. When an asylum seeker presents themselves to whoever—the Border Force or the Home Office—they are putting themselves in the trust of Her Majesty’s Government in the hope that this is the right place to be.

Noble Lords have been making arguments in Committee, and those opposite have been making arguments about forum shopping, wanting better lives and all those things as if they are terrible but, in essence, the refugee convention is about desperate people escaping and having a fair crack at being believed. They may not all be telling the truth. Whether they are or not, they may not all qualify for convention protection, but there should at least be a kind and fair reception and a fair crack of the whip. That means not taking tawdry little process points such as this.

I have been a refugee lawyer, in and outside the Home Office. When I worked as a lawyer in the Home Office—I am going back now to before the new Labour Government, when my first boss was the noble Lord, Lord Howard—we did not take tawdry process points like this. That was in 1996.

In a moment, the ever-avuncular and brilliant advocate, the noble Lord, Lord Wolfson of Tredegar, will get up and tell us not to worry, because this will come into play only when there are no good reasons. So, fear not, Women for Refugee Women, UNHCR, Amnesty International, ILPA and every other bleeding heart. The Home Secretary would call them activist human rights lawyers and they are perhaps almost as contemptible as refugees in her eyes. The noble Lord will say not to worry because, where there are good reasons, this does not come into play and there will not be an issue about evidence.

But why put this in the statute book? Immigration officers, the Secretary of State, the First-tier Tribunal, the Upper Tribunal and SIAC—these bodies are well capable of looking at evidence and credibility. It is an insult to their intelligence for them to look at whether there were or were not good reasons for late evidence. Sometimes late evidence is incredible and sometimes it is perfectly valid, because there are very good reasons—a host of good reasons, more good reasons than not—in relation to trauma.

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Moved by

[Baroness Ludford]

93: Clause 24, page 28, line 40, after “notice” insert “or a slavery or trafficking information notice”
Member’s explanatory statement
This amendment would give effect to the recommendation of the Joint Committee on Human Rights to amend the Bill to provide those receiving a slavery or human trafficking information notice with an equivalent amount of civil legal services support as for those receiving a priority removal notice.

[Baroness Ludford (LD)]

My Lords, as I said in an earlier group, the noble Lord, Lord Dubs, who is the lead signatory of these amendments, could not stay so I am moving our amendments in this and the last group.

Clauses 65 and 66 amend LASPO—the Legal Aid, Sentencing and something Act—to allow for people already in receipt of legal aid for an immigration, asylum or human rights claim, under the exceptional case determination procedure, to receive legal aid advice in relation to a referral into the national referral mechanism, whereby they seek a positive reasonable grounds decision as a potential victim of slavery or human trafficking.

However, these provisions help only victims who already receive legal aid and know how to ask for it. It does not cover all victims. Exceptional case funding for legal aid is very difficult to secure in practice, so Clauses 65 and 66 will help only a small number of people, not least, as the Anti-slavery Commissioner has noted, because it requires a lot of time-consuming work up front to get that exceptional case funding and the solicitor is paid only if the application is successful.

The Joint Committee on Human Rights supports the request of the Anti-slavery Commissioner that legal aid advice of seven hours—or preferably more, as my noble friend’s Amendment 94A probes—should also be available to those in receipt of a slavery or trafficking notice in the same way as for those in receipt of a priority removal notice, to avoid victims of severe trauma remaining unidentified and unassisted. The Joint Committee on Human Rights, like others in Parliament, as I know from these Benches, has also repeatedly expressed its concern about legal aid deserts, but that is a wider debate. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendment 94A in this group. I am sorry that I could not respond to the Minister on the previous group, but I am sure we will come back to that. I was going to observe that the Chamber seemed largely to have cleared, possibly because other noble Lords could not bear this Bill any longer today, but some noble Lords have rejoined us.

It is clearly better that legal aid is available than not, but I am aware, as my noble friend is, of the shortage of provision and some of the problems here. I would say that it is not a matter for today, but actually it probably is. It is very significant, because the words in the Bill will not provide the advice. The Minister has referred two or three times very confidently to the legal aid offer; we are concerned to ensure that that offer has substance.

I have heard over the years of the difficulties of solicitors—if you can find one—advising and taking instructions in immigration removal centres, with the restrictions there on time, of 30 minutes eaten into by the client having to be fetched and then returned. I do not need to say again, but I will in one sentence, that the client often needs a lot of time over a period to tell his or her story.

My amendment seeks to understand how the Government have landed on seven hours. The Minister gently chided me for the use of the term “arbitrary” before. I will acknowledge that my proposal of 20 hours is arbitrary, but it is my way of probing why the Bill provides for seven hours. I asked ILPA whether that would be sufficient, and the reply was:

“I do not think seven hours of legal aid is sufficient to advise on the notice, the person’s immigration status, the lawfulness of removal, and immigration detention. The immigration system is complex, and the Bill makes it more complex through the expedited processes, priority notices, and new definitions/standards … It is also of concern”


that the Bill

“would allow a power to alter that 7 hour time limit.”

There must have been evidence for coming to the seven hours. If that is so, what evidence would the Minister apply to reduce that figure—or indeed extend it? ILPA says it does not

“have a sense as to the specific number of hours needed for this advice, as it would be so case-specific,”

which is entirely understandable,

“including the immigration and procedural history of the case, novelty of any legal arguments, number of bases on which to raise a claim, the legality of detention”

and so on. So I hope that the Minister can flesh out this provision in the Bill so we can understand what the Government think can be achieved with the seven hours of scarce legal aid.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all those who have contributed. These amendments obviously deal with matters of legal aid, and I remind the Committee that LASPO is the Legal Aid, Sentencing and Punishment of Offenders Act, just to put everybody out of their misery—otherwise they will not be able to sleep when they get home. I will be quick, but I will just make one point: with great respect to the noble Lord, Lord Rosser, this is not a matter of generosity. This is not about the Government being generous. I do not want to sound high-falutin’, but this is about the rule of law. Abiding by the rule of law is not a matter of generosity; it is simply non-negotiable, and this provision is in the Bill because it is a proper and necessary thing to do.

Amendment 93 and 94 seek to provide up to seven hours of free legal aid to individuals with a slavery or trafficking notice. They are unnecessary because existing legal aid rules will already ensure that individuals can receive more than seven hours of advice if they receive a slavery or trafficking notice. The key point to bear in mind—and I accept that this is complex—is that a slavery or trafficking notice can be issued only to individuals who have made a protection or human rights claim. That is relevant because it means that they are already within the immigration system and legal aid is already available in order to make that protection or human rights claim. So, in a case where an individual is in receipt of legal aid for their protection or human rights claim and they then receive a slavery or trafficking notice, they are already entitled to advice on that notice as part of their protection or human rights claim. Importantly, there is no limit on the number of hours that can be provided on someone’s protection or human rights claim. Legal advice is available until the matter is resolved, and it may well be for considerably more than the seven hours—or, indeed, 20 hours.

[Baroness Ludford (LD)]

I am really sorry, I know we are looking at the clock, but if I have understood it, and I am sure the Minister is briefed to the hilt, the problem is that he who has, gets more, as it were. If you are already in the asylum system and then you get the notice, you will get even more legal aid—but what if you have not already made a protection claim? What about those people?

[Lord Wolfson of Tredegar (Con)]

The noble Baroness must have had access to my notes, because that was just the point I was going to make. I have written down here that I know the Committee will ask about individuals who are not receiving legal aid for their protection or human rights claim—and sure enough, the Committee did. My answer is that there could be multiple reasons for an individual not receiving legal aid in those circumstances. The individual might not have passed the means or merits test, and those two tests, as the Committee will know, are there to ensure that legal aid is targeted at those most in need who cannot afford advice themselves. That is one possibility, and I will come back to that in a moment. Another possibility—and this does happen—is that the individual has just made an application to the Home Office by themselves and has not sorted out a lawyer. If so, I would strongly encourage them to seek out a legal aid lawyer, who would be able to provide more than the seven hours of advice that could be provided.

Turning to Amendment 94A, the short answer to why we have specified up to seven hours in Clause 24 is that a balance must be struck between giving free legal advice and using taxpayers’ money responsibly. Seven hours is intended to reflect that this is an opportunity for initial legal advice to help individuals understand what the notice is and what it is requiring them to. It is available on a non-means-tested and non-merits-tested basis. That means that anyone with a PRN is guaranteed access to legal aid for up to seven hours, but it does not mean that, after seven hours, there is no further access to legal aid. Some individuals will need further advice; it is not intended that seven hours will resolve every immigration issue. At the end of the seven hours, any individual who has an issue within the scope of the legal aid scheme and who passes the means and merits test will be eligible for ongoing legal advice funded by legal aid until the matter is resolved.

I am conscious that that gets us into the territory of means and merits tests. I answered an Oral Question in this area on Tuesday, when I said that there was a review of the means test under way at the moment, on which I have personally spent a lot of time. I hope very much that we will soon be able to go out for consultation on that. We are conducting a really thorough review of the means test.

Finally, I will address the noble Baroness’s concerns that the exceptional case funding scheme might not be up to standard. Respectfully, I disagree. That scheme is specifically designed to act as a safety net and to provide legal-aid funding to individuals who can demonstrate that, without it, their human rights might be breached. In 2019-20, of the immigration cases that applied for exceptional case funding, 80% were granted legal aid, so that shows that the system works. We are continuing to work with legal aid practitioners and the Legal Aid Agency to improve the scheme if we can.

For the reasons that I have set out, I hope that the noble Baroness, speaking also for the noble Lord, Lord Dubs, will be content to withdraw the amendment.

[Lord Wolfson of Tredegar (Con)]

The noble Baroness’s question is quite broad. She knows that we have had a number of discussions about legal aid, which will continue. I did not do much legal aid in my practice. I do not want to advertise from the Dispatch Box, but my brother-in-law is one of the finest criminal legal aid solicitors in London—I am sure that no one here will ever need his services, but he is absolutely brilliant, none the less.

More seriously, I am very conscious of the need to make sure that people have access to a lawyer with the relevant skill set, because a general right to legal aid is not much use if you cannot find a legal aid lawyer—I absolutely appreciate that. On Tuesday, I explained some of the efforts that we are making in this area. To say any more now might trespass on the Committee’s patience, but I am obviously well aware of this point.

[Baroness Ludford (LD)]

I appreciate the care with which the Minister has responded to these amendments. Although he started by saying that they were unnecessary, he conceded that there is a group of people who do not get legal aid. We might differ in our views on how meritorious they are in any claim for legal aid, but he said that they could find a solicitor and get legal aid that way—but that might not be the easiest thing in the world, for reasons that include what was just discussed. I am afraid that I am not really persuaded.

I will read the Minister’s remarks in Hansard, but I do not think that he denied that there are people who do not get legal aid. The fact that the anti-slavery commissioner was on the case with the JCHR shows that it is not just these Benches over here that think that this is an issue. For the time being, I have to accept that the Minister has given his response and I cannot get any further. I beg leave to withdraw the amendment.

Amendment 93 withdrawn.

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Moved by

[Baroness Ludford]

97: Clause 26, page 31, line 38, leave out from “State” to end of line 39 and insert “is satisfied that—
(a) any relevant appeal brought in relation to the decision would be likely to be disposed of expeditiously; and(b) any relevant appeal brought in relation to the decision could be resolved within the time limits set out in subsection (3) without giving rise to unfairness or injustice.”Member’s explanatory statement
This amendment would give effect to the recommendation of the Joint Committee on Human Rights to limit the cases that are brought within the accelerated detained appeals process, to prevent unfairness or injustice arising.

[Baroness Ludford (LD)]

This clause is about accelerated detained appeals. In moving Amendment 97 I will also cover Amendment 99, both of which I have signed. As I have said, the noble Lord, Lord Dubs, is leading on these amendments, but he has had to leave.

I support the deletion from the Bill of Clauses 26 and 27 in order that claimants should retain a meaningful right of appeal. The Government are trying to revive, though with an even wider scope, the detained fast-track system, despite the fact that their arguments were rejected by the Court of Appeal in 2015 and later by the Tribunal Procedure Committee. These provisions would deny access to justice, including for the reason that five days is far too short for a claimant to prepare an appeal, particularly if they are detained—it is even worse if they are in prison or a detention centre. Clause 26 would apply to a greater number of people even than the detained fast track, including those facing deportation.

The Home Office has been struck down and rebuffed twice but is coming back for more. Its decision-making is frequently flawed and unlawful. As we have heard this afternoon, half of all appeals against immigration decisions were successful in the year to June 2019, so people must have access to effective means of appeal.

After the Court of Appeal declared the detained fast track unlawful in 2015, the Government tried to revive it in tribunal rules. However, the Tribunal Procedure Committee said that if the rules were to operate fairly, which is vital given the high stakes for the claimant, they needed procedural safeguards—an additional case management hearing, for example—such that there was no guarantee of a fast conclusion of the appeal. By trying short cuts, the Government are yet again creating more potential delays. Justice cannot be achieved with the kind of short cuts the Government are trying in this Bill.

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[Lord Wolfson of Tredegar]

My Lords, I think we are at cross-purposes. I was not saying that the language had not changed; I was saying that the test in Clause 26(5) is the same test as in Clause 23(7). On the question of whether the language has changed, I think the noble Lord is right. I will write to confirm the position—I do not want to get it wrong at the Dispatch Box—but I think there was a change in this clause. The test as set out is entirely proper. Is the only way that justice can be done to take the case out of this tribunal? If that is the only way justice can be done, it ought to be done. If this tribunal therefore, by obvious logic, can deal with the case justly, it should do so.

On the first question, I am not sure how much more I can say. The Secretary of State must consider, in order to certify a case as suitable for an accelerated detained appeal, that any appeal to that decision would be likely to be disposed of expeditiously and that the other conditions are met. In coming to that conclusion, the Secretary of State would obviously have to look at all relevant factors. I am not sure that I can take it much further than that, but let me look again at the noble Lord’s question in Hansard. If I can add anything more, I will do so, so he is in possession of everything I can say before we look at it again—no doubt on Report.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord again for his detailed responses. On the first point, on Amendment 97, I just hope that we do not find ourselves back in litigation. He asserts that the Bill avoids the pitfalls that the Court of Appeal found in 2015 and that the Tribunal Procedure Committee found later. Let us hope so, because obviously, resorts to litigation will also be something that gums up the system, which the Home Office already says is broken. Time will tell if this is going to stay as it is.

On Amendment 99, I believe that the noble Lord, Lord Rosser, is right. If my memory serves, the wording has changed since the Bill was in the other place. Certainly, the JCHR would suggest that wording that says that the tribunal “must”—not just “may”—if the interests of justice and fairness require it, take an appeal out of the accelerated detained system is stronger than the wording that is there at the moment. It says that the tribunal “must” if—and it is a broader test—it is in the interests of fairness and justice. It is a better test, and a fairer and more just test, so I am disappointed that the Minister does not like that amendment—although I guess I am not terribly surprised. On that note, I can only withdraw my amendment.

Amendment 97 withdrawn.

Police, Crime, Sentencing and Courts Bill

Baroness Ludford Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, time is against us, so I will be really brief. From all our debates so far, I am convinced that the issue of inconsistent policing is the one where I would put most of my money in terms of improving the situation. Her Majesty’s Inspectorate, which looked at the way police forces dealt with violence to women and girls, was very persuasive about the hugely patchy approach of police forces.

As far as the Law Commission is concerned, anyone reading its work will see that it is complex and that it did not come to an easy conclusion when it gave a provisional view that it would be helpful to add to the categories in the way suggested. Most notably, it identified the risk that hate crime laws could prove unhelpful in certain contexts such as domestic abuse and sexual offences. It then went on to quote evidence from the Fawcett Society, which argues that all sexual and domestic abuse offences committed by men against women should be understood as inherently misogynistic. There is therefore a risk that sex-based hate crime might disrupt this understanding because it would require juries to seek express evidence of misogyny in these contexts, potentially causing some offences to be non-misogynistic where there is insufficient evidence of this.

I am not qualified to comment on the detail, but it is clear that this is a complex issue, as are the issues of sex and gender. Given that the Law Commission will report by the end of the year, the key thing we want to hear from the Minister is that the Government will take the report seriously and it will not join other Law Commission reports in the long grass.

[Baroness Ludford (LD)]

My Lords, we are all impatient for the Law Commission report, but I believe it is best to await it before deciding how best to frame any law on hatred towards women. Sex and gender have become conflated in ordinary speech, even in legislation, but they are not the same. While “sex” has a clear meaning in law, as defined in the Equality Act, the term “gender” does not, and is taken to mean social roles or stereotypes associated with someone’s sex, and that is too tenuous, at least at this stage, to be a legal definition.

If the intention of adding “or gender” is to ensure that legislation also covers hate crimes perpetrated towards trans women, it is unclear why the law would not catch a crime directed towards a trans woman on the basis of presumed sex. In addition, crimes directed against someone based on their transgender identity are already covered by hate crimes legislation.

Independent Review of Administrative Law Update

Baroness Ludford Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, that is a very interesting proposal from my noble and learned friend. Generally, of course, judicial review does not substitute the decision of the court for the decision of the decision-maker, but perhaps that is a matter which I can reflect on and discuss with my noble and learned friend as I consider the responses to the consultation generally.

[Baroness Ludford (LD) [V]]

My Lords, the Government appointed a distinguished panel to review the operation of judicial review led by a Conservative former Justice Minister. The panel said that

“disappointment with the outcome of a case … is rarely sufficient reason to legislate more generally”.

It was obviously thinking of Miller 2, the prorogation case. The Government seem dissatisfied with that response. and are now consulting on statutory changes, such as for ouster clauses, which the panel advised against. The Faulks review also points out that

“any legislation would be of limited effect unless changes are also … made to the Human Rights Act.”

Given their reaction to the review of judicial review, will the Government similarly ignore the result of the Gross review of the Human Rights Act if they do not get the answers they want?

[Lord Wolfson of Tredegar (Con)]

My Lords, we are not disappointed with the report from the noble Lord, Lord Faulks, and his team. On the contrary, it is a very good piece of work. We are consulting for the reasons I have already expressed. The panel did not say that ouster clauses should never be used; it said that, when used appropriately, they should not be seen as an affront to the rule of law. We want to consult on whether and how they should be used. The independent review of the Human Rights Act is ongoing. We will consider its results in due course. While very significant reform of judicial review might require changes to the Human Rights Act, the changes we are proposing do not.

Anti-Semitism: University Campus Incidents

Baroness Ludford Excerpts

Thursday 21st January 2021 Grand Committee

[Baroness Ludford (LD) [V]]

My Lords, I thank the noble Baroness, Lady Deech, for this debate, and the CST, along with the Union of Jewish Students, for preparing this important and distressing report. It is intolerable that students—or, of course, any Jewish person—should be subjected to anti-Semitic abuse. One of the issues highlighted is the flaws and lack of consistency in some universities’ complaints procedures. Some have given strong support, but others have not investigated or adjudicated complaints promptly, thoroughly or fairly. In that context, it is disappointing that only around 40 or 50 of over 130 universities have adopted the full IHRA definition and examples. Only if they do so can they recognise anti-Semitic discrimination, prejudice or abuse based on an appropriate, complete standard that is commonly accepted. I am sorry to see my alma mater, the LSE, missing from the list I saw. What are the results of the Minister’s department’s engagement with universities on adoption of the IHRA definition and best practice complaint procedures? I look forward to hearing his response and I welcome him to the Dispatch Box.

Crown Dependencies

Baroness Ludford Excerpts

Tuesday 12th July 2016 Lords Chamber

[Lord Faulks]

My Lords, there will be no immediate change in the way Gibraltar’s people can travel, or how its services can be sold. The Government are most anxious to maintain the Gibraltar-Spain border: it is one of our top priorities. As for the details, I am afraid that, as with so many things in this negotiation, we will have to wait.

[Baroness Ludford (LD)]

I, too, want to ask about Gibraltar. Obviously it is not a Crown dependency, but naturally there is a great deal of concern in Gibraltar, whose inhabitants voted remain, not only about the economy but also that Spain will be emboldened to press its sovereign claim. How will the Government protect the interests of Gibraltar in all those dimensions?

[Lord Faulks]

As the noble Baroness says, Gibraltar is not a Crown dependency—the subject of this Question. None the less, the Government of Gibraltar have put forward some specific ideas for ensuring that trade will continue between the UK and Gibraltar, and we look on this matter as a priority. We also continue to uphold sovereignty over British Gibraltarian territorial waters by challenging and protesting all incursions, and we are continually monitoring the situation. We will continue to do so, and the long-term aim is to return to the trilateral forum for dialogue between the UK, Spain and Gibraltar.

Article 50

Baroness Ludford Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

The noble Lord asks a number of questions, including some that were posed, as he quite rightly said, to my noble friend Lady Anelay last week during the debate. I can of course advance the position somewhat from the answer that she gave last week, in that we know, as the noble Lord said, who the next Prime Minister is—and I understand that she will become the Prime Minister on Wednesday evening. There is at least some progress there, which I am sure will provide some confidence that the process will be decided rather sooner than might have been the position had there been a contested election for the Conservative leadership.

As to his question in respect of the devolved nations, I know that there have already been preliminary discussions with the various parts of the United Kingdom and their representative Assemblies and Parliament. That will continue, and he is quite right that Brexit, however it finally comes into being, should involve all of the United Kingdom and as many parts—and representative parts of the United Kingdom—as possible.

As to the question of Parliament’s involvement, I fear I can go no further than my noble friend did. It is the Government’s view—as I indicated in the Statement—that the prerogative power does not require parliamentary involvement, but the current Prime Minister made it clear that Parliament will be involved. How and when Parliament will be involved will be a question for the new Prime Minister when she has considered the best way forward.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for his responses. He seemed to make rather a joke of “enjoyable and highly paid” disputes among the lawyers, but surely it is much bigger than that. For a referendum which was fought largely on the issue of parliamentary sovereignty, and on such a major issue as the terms on which this country is supposed to leave the EU, surely it is inconceivable that a decision to trigger Article 50 should not be taken on the basis of a parliamentary decision. After all, Article 50 says that it is up to British constitutional requirements. So this is not about legal formalities; this is fundamentally about democratic principles. We need clarity in a time of huge turbulence. We need to know the evidential basis on which the negotiations will be conducted. We need to know the timing, before and after negotiations, for triggering Article 50. This is about the national interest, not about the convenience of the Conservative Party. I think that we deserve greater respect for Parliament on this decision.

[Lord Faulks]

There is no lack of respect for Parliament; quite the contrary. As to the comment that I appeared to make a joke, the noble Baroness will appreciate that I was simply reading out the Statement that was in the House of Commons. If noble Lords found it amusing, that was a matter for them, not any intention on my part. As to the question of sovereignty, there is a distinction drawn by the noble Lord, Lord Norton, as the noble Baroness may remember, between parliamentary sovereignty and political sovereignty in the Diceyean sense. The Government took the view that it is plainly desirable that Parliament should be involved. Whether there is a strict requirement in law may be a matter that courts will decide in due course.

EU Referendum and EU Reform (EUC Report)

Baroness Ludford Excerpts

Wednesday 15th June 2016 Lords Chamber

[Baroness Ludford (LD)]

My Lords, as a fully signed-up member of the Boswell fan club, I was very impressed not only by the report but by its introduction today from the noble Lord, Lord Boswell. It has been very useful to have the three reports melded into one debate. I was a little uncertain about that originally, but I have been proved wrong, not least because of the reform and withdrawal elements being brought together but also because we have had a very strong contribution on the scientific work that is supported by the European Union. I agree with the noble Lord, Lord Hannay, that, as an arts person, the more I learn about science, the better.

It has been amply demonstrated that the leave campaign has no feasible post-Brexit plan: it would be a leap in the dark, as the noble Lord, Lord Liddle, said. Others have also emphasised the dangers of a chaotic withdrawal in the context of a lack of trust, as my noble friends Lady Falkner and Lady Smith said. The noble Lord, Lord Jay, reminded us that the negotiations would be of a hardball nature, with up to 10 years of fraught discussions. The noble Lord, Lord Howell, recalled that we are not Canada or Japan. We are in Europe, and so we cannot use those models to guide us.

To the noble Lord, Lord Pearson, I say that what the remain campaign and most people in this debate are talking about is Project Reality, not Project Fear. It is about what will happen if, due to what I and others would regard as a very bad decision, this country was to decide on Thursday next week to leave the European Union and follow the Pied Pipers of the leave campaign—a phrase which I have pinched, and will probably use again, from the noble Baroness, Lady Neville-Jones.

I was impressed by the recent entry of former Prime Minister Gordon Brown into the heat of the campaign. He has not traditionally been associated with passion but more with post-neoclassical endogenous growth theory. However, he has come up trumps—not Trump, I hasten to add—with his video filmed in the ruins of Coventry Cathedral. I saw one reference to that video having had 2 million views, and that was a day or so ago.

The Select Committee’s report noted how the Government’s approach had downplayed any visionary or emotional element in their proposals for the future of the EU, focusing almost exclusively on pragmatic and transactional arguments—although that has improved in recent months. Of course, pragmatic arguments are essential, but a dose of what the noble Lord, Lord Boswell, called “feelings and ideals” has the advantage of putting everything in context, set against the past and looking ahead to the future. The noble Lord, Lord Browne, referred to his family history to illustrate the inspiration for the EU. That resonates, and is something that has not come out enough in the referendum campaign. I was at a meeting last night, and the biggest applause of the evening was when I got a bit emotional about the 70 years of peace that we have had.

It is not just vision and emotion that need to be taken into account; we need also to look at the factors beyond the economic, important as those are. The geopolitical and strategic implications of the UK’s exit from the EU are considerable, as is touched on in the EU Committee’s report, and would mean a hit to our security through the loss of key EU co-operation instruments and a loss of diplomatic and political influence.

Following a short break earlier, I came back to the Chamber in the middle of the speech by the noble Lord, Lord Howarth. He enumerated the very unpleasant political forces that are abroad on the continent. We are pretty disputatious as a nation, but we are largely free from the nastiest of the political elements. The injection of our history and stability is much needed in Europe. A couple of days ago, the Financial Times commentator Wolfgang Münchau said that,

“whatever the referendum’s outcome, the chances of the UK playing an active role in shaping Europe’s future are minimal”.

I hope that we will be able to prove him wrong.

I also hope that, in just over a year’s time, the UK will be about to assume the presidency of the EU as a leading, not a leaving, member—in the words of my noble friend Lord Maclennan, echoed by the noble Lord, Lord Hannay. I hope that we will be able to commit to making the EU more streamlined, more effective and possessing of greater legitimacy. I believe that the EU is democratic, with directly elected MEPs and elected Ministers in the Council. However, what we have is a legitimacy deficit. As the noble Lord, Lord Judd, mentioned, we can bring confidence and our outward-looking approach to improve the European Union.

The remain side is not complacent about the current state of the EU, which the noble Lord, Lord Howell suggested. However, he is absolutely right that we have to prepare the EU for the storms to come. It must lift its eyes to the horizon and not be introverted. We can contribute so much to making the EU stronger in addressing the many challenges that there are. For example, we can contribute to making Europe more competitive, with a growing economy, and more ambitious in trade deals. We can also contribute to a Europe that distributes more fairly the gains from globalisation, as the noble Baroness, Lady Armstrong, remarked.

The noble Lord, Lord Low, spoke very interestingly about the contribution of the EU to accessibility criteria for goods and services. That is essential. We all know what we need to compete in a single market, and there are digital, energy and financial services dimensions.

I absolutely agree with the noble Lord, Lord Boswell, that we have wasted the enormous asset that was the balance of competences review. No other member state has done anything so comprehensive. So please, after next Thursday, when, as I sincerely hope, we vote to remain, let us use the information and contributions in that review. It is disrespectful to everyone who did so much work in contributing to and writing up the report not to draw on that exercise. It would help the EU get smart regulation. Let us build the quality, not the width.

The noble Earl, Lord Selborne, strongly emphasised the importance of a strong regulatory framework in the EU as providing a good basis for scientific collaboration. He also highlighted the things that had not worked so well. However, I am glad that, for example, in the clinical trials directive, the Brussels machine did listen and improve that.

My noble friend Lady Sharp made interesting remarks on the bureaucracy around grants. There is a bit of a “cannot win” dilemma for the European Commission. With the Court of Auditors breathing down its neck, maybe 30-page forms are necessary to be able to audit and track the funds. What I would like to see is Finance Ministers and our own Chancellor sign declarations to say that all money spent in their member states is properly spent. Funnily enough, they never want to do that, because they quite like Brussels being blamed.

So many speakers—too many for me to name them all—emphasised how Brexit would severely hit our universities and scientific collaboration, which has been such a success story. That feeds into the reform of the European budget. Big progress has been made, but more needs to be done with the continued switch to innovation, research and infrastructure. We can do that only if we are in there arguing for those changes.

Also, of course, we are very aware of our unique contribution in security and counterterrorism. The UK is a crucial partner. Having the current director of Europol and the former president of Eurojust, the network of prosecutors, is, I think, a tribute to our first-tier legal and policing status. On defence, foreign policy and the European neighbourhood, we need to capitalise on what my noble friend Lord Watson called our “three circles of engagement”—Europe, the Commonwealth and the transatlantic relationship. There is no country in the world that has the networking assets that we have. We are a sort of Tatler of the diplomatic and political world.

I shall say a word on migration, which is an important part of this campaign—and not only external migration, where we must work with the rest of the EU to get a credible policy of migration management, whose challenge is only going to grow, coupled with development aid, as the noble Lord, Lord Hastings, said. On intra-EU free movement, we have had very helpful judgments from the European Court of Justice, including one just yesterday about the payment of child benefit, which have confirmed that free movement is the right to move for a job. It always was, but there has been clarification and firming up of the rules, including through the Prime Minister’s renegotiation. We need to do two tough things. One is making sure that public resources are targeted at areas in this country which are under migration pressure, and being more nimble in switching the money. The other is the investment in training and skills for our own young people so that employers do not automatically put advertisements in Polish newspapers.

Lastly, I shall say a word about our engagement with the EU institutions. It will not come as a surprise, perhaps, to the noble Lord, Lord Judd, that I, as a former Member of the European Parliament, do not agree with his regret regarding a directly elected European Parliament. We certainly need much better partnership between the European Parliament and national parliaments. Perhaps one little step that we could help achieve would be to give MEPs a pass for the Palace of Westminster. It is absurd that we regard MEPs as some kind of foreign body that should not be allowed on the premises. The stress in the reform report on allowing national parliaments a positive and proactive role—a green-card role, not just a reactive and negative red-card role—is very important.

Many remarks have been made, including by the noble Lord, Lord Browne, about the importance of having British officials in European institutions. I think that there are two things the Government could do. They could revive and beef up the fast-stream program in the Civil Service to prepare people for the “concours”, or competition. Also, as far as I know, they have not reversed the much-regretted decision of some years ago to cease funding scholarships at the College of Europe in Bruges—you could call it the Eton of Brussels—which helps provide a channel into the EU institutions.

We need to be careful what we wish for in a “flexible, multi-layered, diverse Europe”. That is fine, as long as it does not become a pick ‘n’ mix, where we end up losing out. Therefore, I end on the warning from Manfred Weber, the present leader of the EPP group, the biggest group in the European Parliament, who sounded a note of caution about British exceptionalism. We are not in the euro; we are not in Schengen; and I wish we had not been half-hearted about justice and home affairs co-operation—and thank you to everybody in this Chamber who worked so hard to get us opted back into the 35 measures. We need to be very careful that we do not undermine the voice of British Members of the European Parliament in getting senior positions, such as chair of the Committee on Economic and Monetary Affairs, which my colleague Sharon Bowles got in 2009. We should not undermine either the chance of that being repeated for the chair of the Committee on Civil Liberties, Justice and Home Affairs or our weight in the Council. I would say yes, perhaps, to a kind of special arrangement for the UK, because if that goes too far we will actually lose the leading voice that many of us here want.

European Union Referendum (Date of Referendum etc.) Regulations 2016

Baroness Ludford Excerpts

Wednesday 2nd March 2016 Lords Chamber

[Lord Lawson of Blaby]

The great majority of the agreements we are party to through the WTO and its predecessor, GATT, were concluded before 1995, when, at that time, the European Union or its predecessor was not even a member of the WTO or GATT.

As for the argument that you need to be a member of the so-called single market to trade with the single market, that is an equal nonsense. Indeed, exports into the single market from countries outside it have, for many years now, grown much faster than UK exports to the single market. After all, the weighted average of the European Union’s common external tariff is only 3.6%. The prospect of our not being able to secure a far better free trade agreement than little Switzerland is minimal.

Certainly the future is uncertain. That, after all, is its nature. But the uncertainty surrounding Britain’s future within the European Union, should we decide to stay, is far more worrying than regaining our freedom. The EU’s blundering route to political union—for that is what it is all about; that is the purpose of the whole enterprise—will continue and, even though we have secured an opt-out from political union, we will remain shackled to it: a sort of colonial status.

This referendum debate is not primarily about economics. It is about whether we in this country wish to take control of our own affairs and to be a self-governing democracy with a global rather than a merely European perspective.

[Baroness Ludford (LD)]

Before the noble Lord sits down, could I press him to spell out what his alternative is? He is the chairman of one of the leave organisations. He always raises a laugh—I have had the privilege of hearing it several times now—when he says that the alternative to being in is being out. But what does that freedom consist of? What kind of deal would he conclude?

--- Later in debate ---

[Baroness Ludford]

My Lords, this has been a very interesting debate. First, I congratulate the noble Lord, Lord Gilbert of Panteg, on his maiden speech and in particular his stress on the cross-party nature of the campaign for the remain vote. I will return to that point.

I will now utter a phrase not often heard these days. The Liberal Democrats are fully behind the Government and support Mr Cameron to the hilt—rather more than some on his own Benches. That support includes the date of 23 June. The Prime Minister made an excellent start with a sparkling performance on “The Andrew Marr Show” and a combative presentation since. I particularly agree with his arguments about sovereignty needing to be pooled if it is to be real not illusory. That point was made by my noble friends Lord Ashdown and Lord Maclennan.

I am very glad that the Prime Minister stressed the value of the EU to UK security, an argument that the Liberal Democrats and many in this House had to fight hard on. I think of the noble Lords, Lord Hannay and Lord Boswell, in that context. When the coalition had to decide on staying with the opt-in to policing and crime-fighting measures, there was quite a lot of heavy lifting so I am very pleased that the Prime Minister and the Home Secretary have been persuaded there.

The Liberal Democrats, who are fully united as a party behind our 70-year history of support for Britain in Europe, believe passionately that remain is not only the rational and right thing to do but also the patriotic choice, playing to our strengths and multiplying our ability to promote our interests. As my noble friend Lord Lee of Trafford said, leaving would take the great out of Britain.

I want to pay special tribute to Europe Minister, David Lidington, who is something of an unsung hero of the renegotiation exercise. He is intelligent, diplomatic and knowledgeable, and his six-year longevity in the post—a poisoned chalice, some would say; I have no idea whether he wanted to be there for that long—has been an asset given the relationships he must have built up with Ministers and officials across the EU. We saw a dividend of that on 19 February. I hope I have not just dealt a blow to his further career prospects. I particularly enjoyed his response to the Brexiters in the other place last week. He said:

“If the Prime Minister had come back from Brussels brandishing the severed heads of the members of the European Commission and proceeded to conduct an auto-da-fé in Downing Street of copies of the Lisbon treaty, they would still be saying, ‘This is feeble, insufficient, not enough’”.—[Official Report, Commons, 25/2/16; col. 564.]

He was absolutely right.

I heard the Foreign Secretary speak a little less colourfully this morning. While still describing himself as a Eurosceptic, he made a powerful case in presenting the document published today for how Brexit was a risky leap in the dark and that none of the potential alternatives was viable for Britain. Just today, the former Swiss President and, this evening, the current Norwegian Prime Minister advised against copying their countries’ relations with the EU.

We all wait—and still wait—for an honest portrayal by the leavers of what they propose instead of EU membership. We waited in vain during this debate as answer came there none. The noble Lord, Lord Lamont, talked about a free trade agreement but as others—including the noble Lords, Lord Willetts and Lord Kerr, said—that is fundamentally different from access to the single market. Everybody sensible accepts that access to the single market comes at a price.

All out friends and allies, not only in the EU but also in the Commonwealth including Canada and Australia, in NATO—which, as the noble and gallant Lord, Lord Stirrup, said is made stronger by the UK’s membership of the European Union and those organisations being partners—and of course in the United States and, importantly, Ireland, urge us to stay in the EU. Can the leavers cite a single country or leader apart from Putin’s Russia that wants Brexit? The US trade representative has said that the United States is not interested in a trade deal with just the UK.

We know, of course, that the leavers are all over the place. Boris Johnson—true to form—could not stick to his suggestion of a second referendum for more than five days. And 13 days before his announced “decision” to back leave, he had been singing the praises of the European Union. Boris executes more U-turns than all the black cab drivers in London, who, by the way, are not among his fans.

We have also heard rather a lot of “porkies” from the leavers, I am afraid. The noble Lord, Lord Willetts, mentioned the one about the habitats directive, which boils down to some non-statutory guidance from Natural England. Boris himself has cited the one about being stopped from having safer lorries that would be more visible to cyclists. He claimed that the French had blocked this measure. However, it passed into law with the agreement of the Council and the Parliament and will come into force in a few years’ time. When the measure was going through, Boris himself blamed the British Government for trying to block this proposal. So some correct facts would not go amiss, including on our budget contribution, where there have also been some wild claims. I commend the organisation infacts.org for picking up a lot of these mistakes.

My noble friend Lord Oates, who made an excellent speech, said that anyone would think that we had no friends. I am afraid that is the attitude of all too many of the leavers. I find a defeatist streak in them and a lack of faith in this country. The side that lacks confidence in the strengths of Great Britain is not the remain side: it is those who want to take their bat home. That quitting attitude undermines, and rats on, our friends. We should be a reliable partner, asking, in the words of the noble and gallant Lord, Lord Stirrup, not just what Europe can do for us but what we can do for Europe. That is the question Winston Churchill asked, who has already been invoked in this debate. I found an article that Edward Heath wrote 20 years ago, which stated:

“I readily accept that at that time”—

that is, the time of the Zurich speech in 1946; I was fascinated to hear the noble Viscount, Lord Eccles, say that he was present—

“Churchill did not envisage Britain being a full member of this united Europe”.

But Edward Heath added:

“This reluctance was based on circumstance; it was not opposition based on principle”.

Mr Heath went on to quote Churchill in the House of Commons debate on the Schuman Plan in June 1950, when Churchill asserted:

“The whole movement of the world is towards an inter-dependence of nations … If independent, individual sovereignty is sacrosanct and inviolable, how is it that we are all wedded to a world organisation?”—[Official Report, Commons, 27/6/1950; col. 2158.]

Apparently, in a letter to his constituency chairman in 1961, he said:

“I think the Government are right to apply to join the European Economic Community”.

One of the joys of the last week or so has been the tweets by Sir Nicholas Soames, who, of course, is the grandson of Churchill. I note that he retweeted a tweet by Charles Grant at the Centre for European Reform, which said:

“As Sir Nicholas Soames’ grandad might have said, the EU is the worst possible way of running relations among European states except for all the others”.

I think there are some things we can do, apart from expressing the remain arguments effectively, to make the British people feel more at ease in the European Union. One is to stop the amount of destabilising change and domestic reorganisation for its own sake in the NHS, local government and the legal system. I am not arguing for stasis when reform is needed, but changing the public and civic realm out of recognition, which has not happened in France or Germany, for instance, makes people nervous, uncertain, bewildered and even frightened, unsure of themselves and their identity, and, all too often, looking for someone or something to blame—and that scapegoat tends to be Europe. I also think that we should stop gold-plating European directives, as has been mentioned.

I make a plea to the Government to go easy on some provocative and partisan policies. I read in the Financial Times that the Prime Minister is advising the Chancellor to ditch his planned raid on pension tax relief because he wants to woo the voters. If the Government would like to do a bit of wooing of the opposition parties in order to create a good cross-party mood of co-operation for the remain campaign, that would not go amiss either. Perhaps the Government could look again at the Investigatory Powers Bill and whether it is a good idea to produce it three weeks after three critical parliamentary reports; at the forced sell-off of social housing; at the attack on Labour Party funding in the Trade Union Bill, which is divorced from a comprehensive reform of party funding; and at slashing the Short money for opposition parties to do their work of holding the Government to account. Perhaps the Government might have a rethink on these policies.

I conclude by hoping that after a remain vote, the Government will pursue multilateral reform inside the EU, working with like-minded partners in a sensible, pragmatic, British way. This was the strategy in coalition of Ministers such as Edward Davey and it must be renewed. That valuable exercise, the balance of competences review, is an excellent basis for doing so. Perhaps then we can get away from using the phrase “Britain’s relationship with Europe”, as the BBC so often does, and remember that if we really want to play a leading role in the EU we have to start by embracing the fact that we do indeed belong to the EU.

European Union Referendum Bill

Baroness Ludford Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, why do I smell another rat here? It seems to me that this is once again trying to slew the whole playing field, which we have desperately been trying to keep level, in favour of those who want to keep us in the EU. It has been quite established for some time. There is the argument that it is very unfair for these people who have been abroad for more than X number of years that they cannot vote in the referendum. But they cannot vote in general elections either. It is quite extraordinary that we seem to be determined all the time to bring in amendments that will make it more likely that we will stay in the EU than leave it.

[Baroness Ludford (LD)]

Does the noble Lord believe that the Conservative manifesto commitment to raise the 15-year cap in the future is also an attempt to fix the electorate?

[Lord Hamilton of Epsom]

A large number of commitments have been made in manifestos that have not been brought in. That is rather like, by the same token, arguing that this is the moment to change the electoral mandate for 16 and 17 year-olds. Are we going to bring all these changes in on the back of a referendum Bill? Like my noble friend Lord Forsyth, I believe that we should have a constitutional convention to look into all these things. The whole thing is becoming more messy and piecemeal as it goes along, and I certainly do not approve of that at all.

All the time, amendments are being brought forward that are designed to make it more likely that the electoral register will be slewed in such a way that more people will vote to stay in than to leave.

European Union Referendum Bill

Baroness Ludford Excerpts

Monday 2nd November 2015 Lords Chamber

[Viscount Trenchard]

The noble Lord is completely right. As I said in at Second Reading, it is necessary that our renegotiations should include the repatriation of financial regulation, the independence of the Bank of England from the European authorities, and the independence and equivalence of our own financial regulators with those of the European ones, which should be those for the eurozone.

[Baroness Ludford (LD)]

My Lords, in intervening briefly on this group of amendments, I apologise for doing so after having been unable to speak at Second Reading or in Committee last week, because of a serious family illness. I hope that the Committee will permit me to make a brief intervention, despite that absence.

I want to say two things. One has been said more than adequately by the noble Lord, Lord Judd. This concerned the point in Amendment 21 that stresses that the report on withdrawal should cover law enforcement, security and justice. The noble Lord is right: we should listen to the police and others in front-line operational roles. This indeed happened with the exercise of opting back in to 35 measures and that is what was so persuasive. That has been said by the noble Lord, Lord Judd.

Secondly, in supporting this group of amendments, particularly Amendment 21, may I take issue with the noble Lord, Lord Stoddart? He suggested that those of us who are perhaps on the inside have a lack of confidence in the UK. I deny that charge. It is not about lacking confidence in Britain, with its overtones of almost being unpatriotic, a charge I also deny; it is about living in the real world.

May I also take issue with the noble Lord, Lord Blencathra? Earlier, we heard that somehow we know better than the US trade representative. Mike Froman, a senior and serious person, has, in the words of the Financial Times, “poured cold water” on the prospect of the UK negotiating its own trade agreement with the US or with other major trading partners, such as China. He said that the US would have little interest in doing so and that the UK could face the same tariffs as China, Brazil or India. With respect, the noble Lord, Lord Blencathra, suggested that we know better than the US what the US would want to do.

[Lord Blencathra]

I am sorry if I gave the impression that we know better. I am not suggesting that; I am suggesting that we should distinguish between political rhetoric from a member of the US Government, who wants the United Kingdom to stay in Europe for a host of other reasons, and the reality that Americans would face should Britain decide to leave.

[Baroness Ludford]

I had some contact with Mike Froman when I was vice-chair of the European Parliament’s delegation to the US. He is an extremely hard-headed and tough character. I rather doubt that he is just indulging in politics. He is talking about the real world and what is actually negotiable.

This debate on the report on our withdrawal from the European Union has strayed into the set of amendments beginning with Amendment 24, on the alternatives and our future relationship with the EU, which is what I really intended.

[Lord Forsyth of Drumlean]

Could the noble Baroness help me with her great experience in these matters and her knowledge of these trade relations? Could she explain how it is that Iceland, which the Prime Minister visited the other day, has managed to negotiate a trade agreement with China and the EU has not?

[Baroness Ludford]

I am not a trade specialist, but I fully accept that far fewer interests are involved when 28 member states are trying to negotiate with China, while with a country of 60-odd million—the UK—would have many more interests at stake than Iceland. If you listen to the Scotch whisky producers, they say that it is because of EU clout that they have access to Asian markets. They did not get this with the UK negotiating for them, but with the EU negotiating for them.

[Lord Pearson of Rannoch]

My Lords—

[Baroness Ludford]

I will finish, rather than be intervened on from every direction. May I just finish?

[Lord Pearson of Rannoch]

My Lords, as the noble Baroness, like other noble europhile Lords, is praying in aid the recent remarks from the other side of the Atlantic, may I ask her and her colleagues to remember that 15 years ago, in 2000, the International Trade Commission, which I think is the largest economic think tank in the world and advises the US Congress, came over to this country for a fortnight? It took every single department to pieces and concluded that the United Kingdom would then have been much better off had it left the European Union and joined NAFTA, and that the United States would been better off, too. Since then, the trading position between us and the United States makes that claim even stronger, while the position of the European Union has declined and will go on doing so. It sounds as though as these remarks from the United States should be left out of the arguments of those who wish to stay in the European Union.

[Baroness Ludford]

I am grateful to the noble Lord for drawing a 15 year-old report to my attention. Unfortunately, I am not familiar with the International Trade Commission or its report. If he would care to send it to me, I would be more than pleased to read it. I think my point about living in the real world has been well made. The idea of the United States wanting us to join NAFTA is new to me.

In conclusion, it is essential to have these reports on withdrawal. In anticipating the ones on alternatives or the future relationship, I think they will become points of reference. We campaigners on both sides will try to make our point, but we have to give confidence to citizens and a point of reference to check our claims. These reports are essential.

[Lord Davies of Stamford]

My Lords—

--- Later in debate ---

[Baroness Ludford]

Very briefly, on the logic of the noble Lord’s argumentation it seems to me that he should have tabled an amendment asking for a report on the benefits of membership, because he is saying that those of us who want to stay in wanted to put a negative spin on withdrawal—which I do not accept, because we want a factual report. However, turning that round, those people who want to leave should have forced or tried to force a report on the benefits of staying in, because they believe that that would show up that there are not benefits.

[Lord Forsyth of Drumlean]

I would not ask for a report on the benefits of staying in, because it seems absolutely apparent that we are considerably disadvantaged by joining with an organisation which is unable to control its currency or borders, and which prevents us exercising our sovereign ability to control our borders and to ensure that we have the conditions in which enterprise can flourish. I look forward to David Cameron’s initiative in the European Union to discover whether the European Union itself realises how it is damaging member states in the Union. I cannot for the life of me imagine why the noble Baroness would want me to put down an amendment suggesting that we have a report on the benefits when so much damage is caused by the way in which the European Union is organised at present. I support my noble friend’s amendment.