Illegal Migration Bill

Debate between Baroness Ludford and Lord Bellamy

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I hear what the noble Lord says. It is an entirely reasonable question. I will take it back to the department and do my best to see how far we can satisfy that completely understandable request. The Government accept that legal advice should be available in practice and quickly, and they are working on that with intense attention at the moment but, in relation specifically to Amendment 120A, do not feel it is appropriate or feasible to provide for a statutory obligation to deliver within 48 hours, which is what the amendment calls for.

However, there should be a system that enables people effectively to take advice within the strict periods of time set out in the Bill, which are subject to extension—we do not yet know how that will work, but they can be extended by the Secretary of State and the Upper Tribunal. I hope your Lordships will accept that the general position on legal aid in Clause 54 is a positive provision in the Bill and that removing the means test and merits tests is correct in the circumstances. Properly administered and operated, this will be a very important safeguard for those affected by the provisions in the Bill. I hope the noble Baroness will withdraw the relevant amendment.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for his reply. I welcome Clause 54 being put into the Bill—it is better than it not being there—but several problems arise. First, Clause 54 says in terms of LASPO only that:

“Sub-paragraph (5) does not exclude services provided to an individual who is subject to removal”.


It does not do anything to make sure that that legal aid for advice and representation will appear, which is the reason for the importance of the amendment from the noble Lords, Lord Bach and Lord Hunt of Kings Hunt, about a duty to provide legal aid, as there is no guarantee. There is also no guarantee that Clause 54 will deliver any legal aid before this Bill comes into force as an Act. What will the Government do in practice to deliver that legal aid?

Secondly, Clause 54 benefits only people who are subject to removal and have, presumably, already had a removal notice. The concern that motivated Amendment 92A was that it should be available not only to individuals who are subject to removal under this Act but to those who might reasonably expect that they would be. They ought to be able to get advice so that they can give informed consent to a trafficking referral; they need to know what the implications and consequences could be. With respect, I do not think the Minister covered either of those points.

Finally, we do not appear to be getting the message across that the better informed and supported people are, the greater the benefit to the Government will be in being able to have faster processes. Clearly, those processes are not working at the moment—we would not have this incredible, appalling backlog if everything was going swimmingly with processing efficiency. I cannot speak for the noble Lord, Lord Bach, but I think we are inspired by the idea that you could streamline the system and try to avoid delays in highways and byways if people were properly legally informed of their rights. The Minister is a lawyer, so I am sure he gets that point, although unfortunately I have not heard him express it. All that said, I beg leave to withdraw Amendment 92A.

Illegal Migration Bill

Debate between Baroness Ludford and Lord Bellamy

Committee stage
Monday 12th June 2023 Lords Chamber

[Baroness Ludford (LD)]

I thank the Minister for his responses. I am not really persuaded by his answer on Clause 49: that these are just some little minor issues that cannot be JRed from the Upper Tribunal. Subsection (3) states that

“the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision”.

So the fact that it has made an error is apparently not subject to judicial review, which seems to me not particularly minor. An application for judicial review can be made if the tribunal

“has acted … in bad faith or … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”.

I do not suppose those crop up very often, and I would imagine that bad faith would be very difficult, if not impossible, to establish, so I do not think there is much wiggle room in Clause 49—but those who know more about how these things work might have other thoughts, and if they do I would be grateful if they would share them with me in due course.

I do not think the Minister covered the point about First-tier Tribunal judges being appointed to act as Upper Tribunal judges. If he did not—I will check what he said—perhaps he could write to me with any answers.

[Lord Bellamy (Con)]

I will happily write to the noble Baroness. I thought I had covered it when I said that it was creating a pool. The noble Lord, Lord Ponsonby, nods. It is creating a pool of judges so we have enough judges of relevant standing and experience to decide what are essentially factual questions. These are relatively limited factual questions.

[Baroness Ludford (LD)]

I apologise. I was clearly inattentive as I was trying to look at the other groups that are coming up. Even so, I think concerns remain about promoting, and possibly overpromoting, people before they are ready. What the Government are proposing to do seems a little odd.

On the tribunal rules, I note the Minister’s citation of a precedent, but at one point he said that the problem is that the committee works too slowly. I would have thought that if processes do not work very well or do not work in a reasonable timeframe, the way to resolve that is to work with the relevant bodies to speed them up rather than to grab power from them. However, I find that this Government seem to have an appetite for grabbing powers from everybody else, whether it is the courts, other agencies or indeed Parliament. I worry that the Government are getting rather too big for their boots. Perhaps one day they will even come a cropper. That said, I think I have probably taken these issues as far as they can go.

European Court of Human Rights: Rule 39

Debate between Baroness Ludford and Lord Bellamy

Tuesday 6th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I agree in principle with the comments made by my noble friend.

[Baroness Ludford (LD)]

My Lords, the Government play fast and loose with the European Convention on Human Rights and the Human Rights Act. This has not inhibited them in invoking Article 8 of the ECHR—the right to private and family life—in their application for judicial review against the Covid inquiry. Article 8, as well as judicial review, has been demonised by successive Tory Governments—I seem to recall something about a cat, from Theresa May when she was Home Secretary. Will the Government make it a hat-trick of hypocrisy by seeking interim measures under Rule 39 from the Strasbourg court if they do not get satisfaction domestically over that Covid inquiry JR?

[Lord Bellamy (Con)]

With respect to the noble Baroness, that question does not arise. The Government have no intention of going to Strasbourg on that issue. Article 8 is a very important part of the convention, which is also part of domestic law through the Human Rights Act. The subject of today’s question is the Rule 39 power, which is quite a difficult question.

Retained EU Law (Revocation and Reform) Bill

Debate between Baroness Ludford and Lord Bellamy

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Bellamy (Con)]

I thank my noble friend Lady McIntosh for that intervention, and I stand corrected. She is completely right that Scotland is a mixed system, although I venture to suggest much influenced—if I may use that controversial word for a moment—by the common law. As I said a moment ago, Scottish judges have been, frankly, the best common lawyers anyone has ever known. They happen all to be called Reid but that is a coincidence.

Of course, I accept the comment, although I beg to differ as to whether any different conclusion follows. Essentially, the “may”, “must” and other amendments that the noble Baroness has proposed are independent of the exact legal approach one is talking about. It may well be that, in a Scottish situation, there would be a greater willingness not to disturb retained case law than in an English situation. I do not know; maybe these things will come up to the Supreme Court and someone will say “That is what we are going to do”. Maybe the Scottish tradition will prevail; that is perfectly likely. With respect, the Government do not feel that that changes the general thrust of Clause 7.

That was changes of circumstances. The next question is on this word “influence”—whether it has been influenced or determined by European law. I think “influenced” is included simply to give a sufficient degree of flexibility and to avoid deciding what might be quite a difficult point: whether European law was in fact determinative of a particular point or just part of the general context. Very often, it is part of the general context and the influence of the European element on the final outcome.

On that point—I am not sure we picked it up entirely; I may be speaking out of turn—I shall, if I may, at least attempt a reply to the noble Lord, Lord Kerr, on the question of principles of interpretation. I think it is relevant to the influence point. It arises in the context of legislation. Many here will know better than me, but the essential difference, as I understand it, is that traditional common law, including the Scottish approach, is a highly textual interpretation: what the meaning of the words is. The European Court’s general approach is a teleological interpretation of the general idea of where the statute is going. Very often, because of the laconic and sometimes completely deficient nature of European legislation, that court is much more prepared to fill in the gaps in the legislation than an English court would be. It is along those general lines; I am sure we can elaborate further as necessary later in these proceedings. So that is the influence point.

I think I have dealt with adding in the factors of settled understanding, legal certainty and so forth. The Government do not support that approach because it would simply bake in the status quo; that is the Government’s essential position. Legal certainty is inevitably something the courts will consider. They considered it in the Warner Music case because they were dealing with an international treaty and there was a desire not to disturb the law—albeit that the law was a right old muddle, as far as one can see, if I may put it colloquially just for a moment. In that case, it was not actually very seriously argued that we should depart from EU law; it was a perfunctory argument that took place in a few minutes at the end of the day, so it was a bit of a non-event.

[Baroness Ludford (LD)]

I apologise if I am interrupting the Minister before he has finished; I think he is replying to Amendments 85 and 88, although he did not specifically refer to them. He dismisses the need for the factors introduced in those amendments because he says the courts can have regard to them anyway. Why have the Government prescribed several elements themselves if the courts can have regard to them? Our whole argument is that the courts can have regard to factors they want to have regard to. The impetus behind Amendments 85 and 88 was that the Government were being partial and pushing in a certain direction for the three elements they will allow the courts to consider—the argument for adding the extra elements, the consequences of disturbing the settled understanding of the law and the importance of legal certainty, clarity and predictability—and to try to re-establish the balance that the authors of the amendments felt was lacking.

If I may say so, I find the Minister’s reply so far extremely puzzling. He has, correctly, given a paean of praise to our courts and the common law, saying that they have perfected the art of creating this mosaic—

--- Later in debate ---

[Baroness Ludford (LD)]

If I may be permitted to finish, I have now had three interventions from the Government Front Bench, which of course have lengthened this intervention. I ask the Minister please to explain how his paean of praise to our courts and their ability to develop the common law without inhibition accords with the constraints and straitjackets the Bill is putting on the courts he is praising.

[Lord Bellamy (Con)]

My Lords, the Government’s position is that this is not a straitjacket. The courts are required to look at three things: the fact that the retained EU case law is made by a different court, whether there has been a relevant change of circumstances, and how the proper development of the common law should continue in future.

As to why we have not included other considerations—notably, legal certainty—the Government’s position, which noble Lords may or may not agree with but this is the explanation, is that once you write down the importance of legal certainty, that is potentially a recipe for passively doing nothing and continuing to be a rule taker for 20 years to come. That is not the consequence of withdrawing from the EU. The courts can continue to look at it, but that is the reason why the Government have drafted Clause 7 as it is.

I hope I have dealt with most of the issues raised about Clause 7 one way or another. There is the reference procedure, and noble Lords, and noble and learned Lords, have made the point that higher courts always have the discretion whether to take a case, and they should be able to decline it. I completely understand that point. The Government had thought that the ability of those superior courts—the higher courts or the Supreme Court—to decide whether what they were being asked to do was relevant and whether the point raised was of general public importance was sufficient protection and would enable them to decline to hear the case if that were so. I must say that the circumstances in which a lower court actually gets as far as making a reference and identifying a point of public importance that a superior court feels it should not hear seem to me, if I may say so, somewhat remote, but we can have another look at the drafting if there is a need for further reassurance. I cannot commit to changing it, but I can commit to looking at it and discussing it with the relevant persons.

National Security Bill

Debate between Baroness Ludford and Lord Bellamy

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I shall certainly reflect on the practical side. This would be a decision for the director of casework at the Legal Aid Agency. The noble Baroness, Lady Ludford, rightly raised the question of the practical “bureaucracy” associated with the proposal, and we are working with the Legal Aid Agency to see how it can be most conveniently implemented, with minimum disruption.

[Baroness Ludford (LD)]

My Lords, I shall be brief, because I know that noble Lords are waiting for the Statement. I thank the Minister for his reply. His first point was that the Government wanted to address the unique situation where, they contend, the people envisaged —those who have committed terrorist offences—have threatened to undermine our democracy. Other noble Lords who have contributed to the debate and who I very much thank, including the noble Lords, Lord Pannick and Lord Anderson, talked about other extremely serious offences such as murder, rape and, I think, manslaughter. Why just terrorism? Personally, I think that the offence of rape undermines the principle of our modern society, which should exist, about equality between men and women, the dignity of women and our rejection of abuse of women. Apart from very serious terrorist offences, I might judge a rapist on a more serious basis than someone who gets a fine for graffiti, for example, presumably in support of some proscribed organisation. Therefore, I do not think that the argument is very sound, if I may say so.

Probate: Waiting Times

Debate between Baroness Ludford and Lord Bellamy

Thursday 8th December 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I invite the noble Lord to write to me or the relevant Minister in the other place with that particular problem so that we can address the issue. That is not the sort of thing that we wish to see happening. We will of course consider all available opportunities to improve the service offer.

[Baroness Ludford (LD)]

My Lords, the Question asked by the noble Baroness, Lady Meyer, is important and I identify with her views and those of my noble friend Lord Marks. The emotional time of bereavement is made worse by a host of bureaucracy, much of it duplicative and unnecessary, and sheer inefficiency. In the spring of 2020, the probate service lost my late husband’s will, which had been deposited with it for safekeeping, and for three weeks I did not know whether it would reappear. I found the probate service Dickensian. It does not seem to have got much better. Will the Minister and his colleagues in the Ministry of Justice, which has many agencies that, frankly, underperform, make this a priority?

[Lord Bellamy (Con)]

My Lords, I very much apologise to the noble Baroness for that incident. I hope that I have made it clear that this is a priority. We have to sort this out.

European Convention on Human Rights

Debate between Baroness Ludford and Lord Bellamy

Monday 18th July 2022 Lords Chamber

[Lord Bellamy (Con)]

I have had no conversations with the Attorney-General, and what the Attorney-General says or may have said in her capacity as a leadership contender is neither here nor there—as an unsuccessful leadership contender, I hasten to add. We need to get this straight. Unless we can define the boundaries of the debate we are about to have, we will be in a very unsatisfactory place. We are talking about the mechanisms of the convention—we are not talking about whether we should be in the convention or not. I remind the House that the UK has the best record of all member states within the convention; we are a party to, I think, seven United Nations conventions on human rights; we are very active in the Council of Europe in a number of respects; we fully support the ICC in its reaction to the Russian invasion of Ukraine; and there is no question of this fine tradition being mitigated, let alone abandoned.

[Baroness Ludford (LD)]

The Minister is quite right that we need to be clear but unfortunately, only two of the five remaining candidates for the Tory leadership have been clear that they would not leave the convention. Liz Truss, who is still in the Government, has said that she would be prepared to leave the ECHR. Rishi Sunak and Kemi Badenoch have failed to clarify their positions. Can the Minister be confident about the position of the Government from September, when he even has present Cabinet Ministers who do not agree with him?

[Lord Bellamy (Con)]

The Government have set out their position in the manifesto upon which they were elected. There is no change to that manifesto.

Human Rights Act 1998

Debate between Baroness Ludford and Lord Bellamy

Thursday 14th July 2022 Lords Chamber

[Baroness Ludford (LD)]

In further testing the patience of the Minister, and no doubt the House, does he really think that the constant repetition over decades of certain politicians and sections of the press that it was only undesirable people who were getting the benefit of human rights law—criminals and whoever—has had no effect whatever? That and the lack of civic education in schools about the benefits of the Human Rights Act has helped us arrive at this situation. Perhaps there is only a slight silver lining to the pandemic, which otherwise, obviously, has been horrible: that while not being able to visit their relatives in care homes, some people might have realised or had perhaps a glimmer of understanding of the relevance of human rights to protect family life, the right to life and all those other issues.

[Lord Bellamy (Con)]

To take the question from the noble Baroness, Lady Chakrabarti, about the Attorney-General first, we seem have a somewhat unusual constitutional position here. It appears that the convention that all government Ministers speak collectively on behalf of the Government is de facto in suspense when there is a leadership contest going on. I am not really able to comment any further, except to say that it is a very curious position that has arisen. If I may, I will leave that point there.

On the general question of where all this disquiet comes from, I would say that this issue is not new. In 2008, Jack Straw, the very Home Secretary who introduced the Act, commented that it did not seem to have a very good balance between rights and responsibilities. There is no greater doughty fighter for liberty in this House than the late Lord Lester of Herne Hill, who favoured a domestic Bill of Rights. A number of retired judges—Lord Sumption, to mention only one—have expressed concerns. The Brighton declaration, which was effectively brought about by the United Kingdom under the chairmanship of the noble and learned Lord, Lord Clarke of Nottingham, and assisted by my predecessor, the noble Lord, Lord McNally, to whom I also pay tribute, was intended to address this question of exactly how the margin of appreciation and doctrine of subsidiarity worked. It has now taken 10 years for even that modest step to finally come into force. So it is not accurate to say that there have not been rumblings in the background about this Act. The Government’s purpose is to try to put the existing Act on to a better footing.

On the important points that have been made in relation to Scotland, Northern Ireland and Wales, it is perfectly accepted that the relevant consents of the devolved Administrations should be sought. We are particularly concerned about the position in Northern Ireland and to make sure that, so far as possible, all those concerns can be satisfied. I am embarking on discussions with the various devolved Administrations in that regard. They do not agree with the Government at the moment; we shall see how we get on, but that is the position and we are well aware of that problem. The convention rights remain embedded in all the devolution enactments. It is certainly the Government’s position that what is being put forward is compatible with the Good Friday agreement and that the suggestions in this Bill of Rights do not in any way put the United Kingdom in any breach of its international obligations.

To sum up, once the tumult and the shouting die down, the fact is that the UK remains in the convention. We are taking action to restore or enhance public confidence in the existing framework, to strengthen free speech and associated rights, and to have an open debate about the balance between elected power on the one hand and judicial power on the other. The noble Baroness, Lady Whitaker, referred to Pip in Great Expectations. I am sure that Nicholas Nickleby, David Copperfield and Oliver Twist would have greatly welcomed a Human Rights Act had it existed at that stage of the 19th century. I commend to the House the Government’s expectation that this Bill will produce a better balanced and enhanced respect for human rights than is currently the case.