Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Anderson of Ipswich and Baroness Chakrabarti

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I rise in place of the noble Lord, Lord Carlile, to speak to Amendments 19, 21, 25 and 28, in his name and in mine, which are also signed variously by the right reverend Prelate the Bishop of Manchester, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Etherton. We are all grateful to Justice for its assistance in drafting these simple but important amendments.

The purpose of these amendments is to replace the irrebuttable presumption in Clause 2 that Rwanda is a safe country by a rebuttable presumption to the same effect. Decision-makers would begin from the same position that Rwanda is safe, but they would be entitled to consider credible evidence to the contrary. That is provided by Amendments 19 and 21, which amend Clause 2(1).

Amendment 28 supplies more detail by indicating the matters on which evidence could, if it is available, be presented: the risk of refoulement from Rwanda, the risk that there will be no fair and proper consideration of an asylum claim there, and the risk that Rwanda will not act in accordance with the treaty. These are all things that, under Clause 2 as it currently stands, may not be considered by independent courts and tribunals. They are not only relevant but of the highest importance to the lives and safety of anyone we send to Rwanda.

Finally, Amendment 25 would lift the bar on courts and tribunals considering claims that Rwanda is not safe. It is the logical corollary of Amendments 19 and 21: if decision-makers are entitled to consider credible evidence that Rwanda is not safe, the courts must be entitled to do so in order to determine whether they came to a lawful decision. Amendment 29, from the noble Lord, Lord Coaker, is welcome, but without an equivalent of Amendment 25 I am afraid that it does not do the job.

These amendments would not open the floodgates to vexatious claims. To be considered, any evidence must meet the credibility threshold—a well-established feature of Home Office practice, which, in a policy document entitled Assessing Credibility and Refugee Status in Asylum Claims Lodged on or After 28 June 2022, highlights a number of so-called credibility factors, including sufficiency of detail, internal consistency and plausibility.

To summarise, Clause 2, as it came to us from the Commons, requires officials to disregard relevant facts and prevents the courts calling them to account for it. With Clause 1, it creates a legal fiction—not in the field of tax law or planning law, where such things have their place, but in the totally different context of human safety and its opposite. It suppresses the evidence-based inquiry on which our common law and, ultimately, our democracy depend. Accept this and, as the noble Lord, Lord Hennessy, said in his Second Reading speech, with all his constitutional expertise:

“We shall be living in a different land, breathing different air in a significantly diminished kingdom”.—[Official Report, 29/1/24; col. 1022.]


These four amendments would enable those entrusted with these sensitive decisions to look at Rwanda as it is, not as we all hope that it may become. But I must acknowledge that, for this very reason, they go to the heart of this Bill, for it is not a bright by-product of this Bill but its whole purpose to assert to be true what first the Supreme Court and then our International Agreements Committee have found to be false, and then to protect that false assertion from rational challenge by decision-makers or in the courts.

This is not, like the previous group, a debate about exceptions. The deterrence theory on which the Bill is founded has the unfortunate result that it is the most objectionable features of this Bill to which the Government hold most tightly, even when, as here, they set a thoroughly depressing precedent. There are limits to my optimism that the Minister will respond positively to these amendments but, knowing him and respecting him as I do, I do not altogether abandon hope.

[Baroness Chakrabarti (Lab)]

My Lords, I support the noble Lord, Lord Anderson, who has put his case with the precision and succinctness that we remember of our late friend Lord Judge. These amendments would render the safety of Rwanda, which we hope will come in the future, a rebuttable presumption rather than an absolute conclusion. They echo my Amendment 34, which we discussed in the first group, but put more flesh on those bones. I commend them to the Committee.

I also remind the Committee that the amendments echo a finding by your Lordships’ Constitution Committee. Ministers say that it is precedented and normal to have lists of safe countries in asylum statutes. That has been the case in the past, but in those past cases the consequence of being a safe country on a so-called and unfortunately coined white list of countries has been only a rebuttable presumption. So Ministers were wrong, for example, to say during the course of the Illegal Migration Act, “Nothing special here, nothing new”, when they said that it will be an absolute conclusion and irrebuttable presumption that any country is absolutely safe.

We need to amend this Bill in good faith. We need belts and braces. We will have to look at other provisions and amendments around how it is that we will judge when Rwanda becomes safe, as we all want it to be. In any event, even when all the experts in the world—the UNHCR, independent monitors, parliamentary committees —say that things have gone well in the last couple of years and that the treaty worked out, and how wrong we were to be so sceptical as things have gone so well, so quickly, and Rwanda is considered to be one of the safest countries in the world for its treatment of asylum seekers and refugees, it is still right in principle that the presumption of safety should be a rebuttable presumption and not an absolute conclusion that squeezes out the judgment of civil servants, Border Force and Ministers, or ousts the jurisdiction of our courts.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Anderson of Ipswich and Baroness Chakrabarti

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I will not seek to replicate the eloquence and experience of noble and noble and learned Lords, including noble friends who have spoken before me. Instead, I will take on the challenge of addressing the noble Lord, Lord Lancaster, directly, because he is the person with whom I most disagree. From his comments in the previous group, I think he is particularly concerned about lawyers in this context. Perhaps he shares some of the concerns of his colleagues in the other place about warfare and a lack of warmth and respect for our Armed Forces.

I would like to reply to him in the following way in case it helps us develop some common ground in scrutinising this legislation. For pretty much the whole of my career as a human rights lawyer and campaigner, I have been accused—I would say falsely—of being soft on crime, soft on those suspected of crime and soft on those accused of crime. I would say that I am not soft: I just believe that people should be protected from false accusations and charges by due process, and that a miscarriage of justice—a wrongful conviction —delivers more, not fewer, victims. That has been my view, whether the person accused is in civilian life or in uniform, so I have not given up—nor have other lawyers in this debate or in the country at large—on the jealous protection of due process just because the people who are accused may be members of our military.

The concerns expressed by everyone on this group of amendments, and many on the earlier group, are about this part of the Bill addressing prosecutions—which have not been a problem—instead of investigations. That is why the noble Baroness, Lady Smith, wished that we could have got to the meat—the heart—of the debate sooner, but that is not in the natural order of things. Legislators, as opposed to Governments, are not in a position to do what is really required, which is to redesign and devote investment to a robust investigative system that is suitably independent, swift and resourced. Instead, we have these amendments, which probe what fair and robust investigations would look like to safeguard —I stress, safeguard—military personnel from the concerns that they have expressed over many years from the shadow that hangs over them. That is why the amendments are well put, if only in the first instance as probing.

The noble Lord, Lord Lancaster, said that he did not really see the value of Amendment 3, in the name of my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford—who spoke so ably earlier on—because it would replace Clause 2, which is about prosecutions being “exceptional”, with a new, perhaps more convoluted form of words, which he might think is trees and not wood, about the dangers of being “materially prejudiced” by the passage of time. “Exceptional” is not desperately helpful as a new test when prosecutions have been so truly exceptional up to now. Prosecutions have not been a problem. No one is suggesting that lots of vexatious prosecutions have been a problem but merely that people have been worried about them because of shoddy, lengthy and delayed investigations. The status quo is for prosecutions to be quite exceptional. We are not seeing very much by way of guidance to prosecutors in the current Clause 2, which says that such prosecutions, as part of a triple lock, should be exceptional.

Further, we still have a Human Rights Act, and this legislation has to be predicated on the fact that that will continue—certainly, CHIS legislation was tightly predicated on that proposition. There has been case law during the tenure of the Human Rights Act showing that, if it is necessary to do so to comply with human rights, “exceptional” can be read as something that is much more routine. If, as some of us believe, this legislation, unamended, would give rise to violations of victims’ human rights, “exceptional” in the current Clause 2 would have to be construed by courts as something that is quite possibly less than exceptional and therefore not the position that the noble Lord, Lord Lancaster, would like. Amendment 3 as proposed by my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford, is much more precise about what is sought to be avoided in the interests of the accused, which is a test that they not be materially prejudiced by the time elapsed. We are supposedly here to reassure armed personnel, who we know are very concerned about time elapsing, and their chances of a fair trial being prejudiced by that, because of the shoddy, delayed and repeat investigations that we have seen.

If I were serving in the military, I would take much greater comfort from protections in relation to these investigations in general, but, if we are going to look at provisions of this kind—which I do not support, because I do not support the presumption against prosecution—this concept of being materially prejudiced by the passage of time, through no fault of my own, should give far greater comfort to me as an accused than would the word “exceptional”, which could become devoid of content.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, when the Minister introduced this Bill at Second Reading, she said that she detected broad sympathy with its objectives. If she meant the objective of protecting our veterans against repeated and delayed reinvestigations for which there is no new or compelling reason, I am quite sure she was right. The noble Lord, Lord Dannatt, mentioned Major Bob Campbell, as has the noble Lord, Lord Faulks, today. Major Campbell was investigated multiple times over 17 years in relation to the death of an Iraqi teenager—eight times according to the noble Lord, Lord Dannatt, and 11 times according to the noble Lord, Lord Faulks—before being finally exonerated last year by an inquiry led by the noble and learned Baroness, Lady Hallett.

That multiplicity of investigations is something that surely no noble Lord would wish to defend, although the fact that the ICC prosecutor looked carefully at the case and decided not to proceed only because there had been a thorough investigation by the state should be a warning against any complacency that we can weaken our standards of investigation while still keeping the ICC at bay.

Amendment 28 seeks to attack the problem of multiple investigations directly by injecting an element of independent quality control into the investigations process. It would require further investigations to be conditional on compelling new evidence emerging and on an allocated judge advocate considering the totality of the evidence to be sufficiently strong. Like the Henriques review, which I welcome, Amendment 28 has the advantage of straightforwardly addressing the issue of repeated inconclusive investigations. I would, however, voice two reservations, with ICC-proofing in mind. First, is a judge advocate a sufficiently independent figure to apply the filter? Secondly, a high bar is set by the requirement of “compelling new evidence”, a bar which one would not normally expect to be surmounted without the conclusion of precisely the further investigation for which this test would be a precondition. Perhaps I might suggest “there is a compelling reason” as more realistic wording for proposed new subsection (2)(a).

Amendment 17 seeks to address slow investigations. Proposed new subsections (3) and (5) would put some time limits into the process. That, again, strikes me as a solution which, whether appropriate or not in all its detail, is at least directed to a real problem. Let us take the case of Baha Mousa, who died in British custody in 2003 after being hooded, deprived of food and water, and beaten, sustaining at least 93 injuries. The first round of prosecutions, to which the noble Lord, Lord Lancaster of Kimbolton, referred earlier, was characterised by a closing of ranks and achieved only a single conviction, in 2007, on a guilty plea by a corporal to a charge of inhumane conduct. There followed a three-year public inquiry, led by Sir William Gage, which in its three-volume report of September 2011 made detailed findings about the circumstances of Baha Mousa’s death and identified 19 soldiers directly involved in his abuse. The Iraq Historical Allegations Team was tasked in May 2012 to review that report with a view to assessing whether more could be done to bring those responsible to justice.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Anderson of Ipswich and Baroness Chakrabarti

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, as one of the many Cross-Benchers who has applied themselves to this Bill, I record my thanks to the Minister for her explanations and for the discussions with her, which I have enjoyed—no 48-hour weeks for her—and James Brokenshire, who continues to have all our good wishes; to the Bill team; to the police and MI5; to IPCO, whose monitoring function is so vital; and to the NGOs and individuals who campaign on these issues and do their best to keep us all honest. I am particularly grateful to those who brought the Third Direction case. There are issues of great public concern which simply do not come to the attention of Parliament without the spur of litigation, and this is one of them. I have also appreciated not only the speeches of other noble Lords but my informal dialogue with them, intensive at times, which in my experience can be achieved just as easily, if not quite so pleasurably, in a virtual House as in a physical one.

This Bill was not widely consulted on and went from Committee stage to Third Reading in the other place during a single day. It needed the time we were able to give it, and I believe that after seven days of debate we have achieved significant improvement and clarification. I thank the Minister in particular for working with me on real-time notification. I hope we can achieve a satisfactory result on the other excellent amendments that we have passed, including those of the noble and learned Lord, Lord Thomas, which improve notification and the amendment of the noble Baroness, Lady Kidron, on juvenile CHIS, while still enabling the Bill to be enacted by the start of the Court of Appeal hearing on 28 January, which I know is the Government’s ambition.

I have great respect for the noble Baroness, Lady Jones of Moulsecoomb, and understand her regrets, which are underlined by the withholding of consent by the Scottish Government, but I will not be voting for her amendment to the Motion. For all its difficult and controversial features, the Bill is a clear improvement on the opaque and poorly safeguarded arrangements that preceded it, and it has my support.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.

I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.

Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Anderson of Ipswich and Baroness Chakrabarti

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

I can be brief. My noble friends pose two very important questions that become even more unnerving when run together. I look forward to what the Minister says about, first, the exact detail of this conduct in relation to CCAs—it is vague language; can it be sharpened?—and, secondly, the ability under the legislation as drafted for corporations, rather than individuals, to be licensed to commit criminal conduct or to run CHIS and criminal conduct themselves. If she thinks that the Bill is too broad compared to government policy, will she consider ruling out on the face of the legislation that kind of sub-delegation or outsourcing to corporations?

[Lord Anderson of Ipswich (CB) [V]]

[Inaudible]—the noble Baroness, Lady Chakrabarti. I am less concerned than I think she is by the prospect of immunity being accorded to CHIS—at least, human CHIS. I incline more to the view expressed by the noble Baroness, Lady Manningham-Buller, on our first day in Committee that CHIS

“should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk.”—[Official Report, 24/11/20; col. 211.]

Of greater potential concern is the prospect of a general criminal and civil immunity for the authorising officer or body. We look forward to hearing whether, as debated on the first day in Committee, the Criminal Injuries Compensation Authority will be able to compensate the victim of a crime covered by an authorisation, which would at least be a start on the civil side. We will, I am sure, return to these difficult issues.

Hardest of all is to see what justification there could be for according immunity, in any circumstances, to persons who are neither a CHIS nor employed by the authorising authority.

I welcome the clarification that these amendments would provide and will be interested to hear whether the Minister has anything to say against them. I anticipate that she may not because, as the Advocate-General for Scotland said on the first day in Committee:

“The Bill is intended to cover the CHIS themselves and those involved in the office authorisation process within the relevant authority”.—[Official Report, 24/11/20; col. 151.]


If, as I hope and believe, nothing more is intended, let us ensure that the Bill makes this clear.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Anderson of Ipswich and Baroness Chakrabarti

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, this group of amendments focuses on compensation for crimes committed pursuant to a criminal conduct authorisation. I suggest that the applicable principles should be these.

First, it would be unfair to expose undercover operatives to personal civil liability for doing something they were expressly authorised by a public authority to do, just as it is generally considered unfair and contrary to the public interest to prosecute them for that. This, despite my profound respect for the noble Lord, Lord Paddick, and for all his police experience is my problem with Amendment 6.

Secondly, some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation: not from the person who perpetrated the crime but from the authority which authorised it, or from the state more generally. So what should that means of compensation be?

The first and obvious route, already referred to by the noble and learned Lord, Lord Falconer of Thoroton —but not, I think, responded to by the Minister—is via the Criminal Injuries Compensation Authority and its equivalent in Northern Ireland. That is not expressly referred to in these amendments, but can the Minister confirm whether it is available to the victims of crime committed pursuant to criminal conduct authorisations under the scheme of the Bill and if not, why not?

The second possible route to compensation, suggested by Amendment 8, is for the CHIS who perpetrates a crime to be capable of being sued and then, if necessary, indemnified by the authorising authority. I see the attraction of that, but of course criminals are rarely perceived as having deep enough pockets to be worth suing. I can also see considerable practical difficulties in keeping their status as a CHIS secret once the indemnity comes into play. It was interesting to hear from the noble Baroness, Lady Massey of Darwen, that this amendment is based on an Australian model. It would be interesting to know how much that model is actually used.

The third possible route is by proceeding directly against the authorising authority in the Investigatory Powers Tribunal. Amendment 71 is designed to give effect to that, but I wonder whether it actually adds to what is already in RIPA. A new subsection (5)(g) is proposed for its Section 65, so as to include conduct authorised under new Section 29B. But new Section 29B will be in Part II of RIPA, which is already specified in Section 65(5)(d).

How would a person be made aware of the possibility of proceedings in the IPT? The Investigatory Powers Act 2016 already requires IPCO not only to inform a person of a serious error, where it is in the public interest to do so, but, by Section 231(6), to inform them of any right they may have to apply to the IPT. By Section 232, IPCO is required to give any necessary assistance to the IPT. So far so good, although I wonder how often, as a matter of practice, it will be considered by a judicial commissioner to be in the public interest to inform a person of a serious error of this kind. To do so will often risk blowing the cover of the CHIS, notwithstanding the fact that the IPT proceedings themselves are very secure.

In short, it seems to me that the Amendment 8 route could be created, and that the Amendment 71 route may already exist, but that both are likely to be hamstrung in practice by the requirements of keeping secret the existence and identity of a CHIS. That rather points up the advantages of ensuring that the Criminal Injuries Compensation Authority is available to the victims of crimes committed by undercover operatives in the same way as it is to the victims of other crimes. I hope the Minister will feel able to comment.

Finally and more generally, I make a procedural suggestion, following the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd, that a special committee be appointed to take evidence from the police and MI5 on matters considered too sensitive, perhaps, for the ears of the rest of us. I know the Minister is thinking about that proposal, but should it not meet with favour, an alternative might be to task the Independent Reviewer of Terrorism Legislation with investigating the position and reporting back. The current reviewer, Jonathan Hall QC, is highly expert in all matters relating to police law, not only counter- terrorism. He is widely respected for his impartiality and has, of course, the very highest security clearance. I recall, as independent reviewer, performing a similar function when the Bill that became the Justice and Security Act 2013 was going through Parliament, and though I cannot commit the independent reviewer, I should be happy to share that experience if others see merit in the idea.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be brief on this group—because I gave my views on the importance of removing both civil and criminal immunity in the earlier discussion—save to take the opportunity to wholly welcome the cogent, powerful and accessible report of the Joint Committee on Human Rights, and to congratulate my noble friends Lady Massey and Lord Dubs, as well as all the other members of that committee. The committee has been one of the greatest success stories coming from the Human Rights Act. Some once thought the Act would be just a recipe for litigation, and human rights would be just a box of lawyers’ tricks to wield in court, but the Joint Committee on Human Rights has been the missing ingredient that allows for human rights principles to be included in the consideration of legislation before it is even passed. I say this knowing that that the Minister will take that report incredibly seriously when he considers his approach to the next stage of the Bill.

On civil immunity, it is worth saying that, for a lot of victims, this is as important as criminal immunity. For a lot of innocent third parties, who may have lost property or even suffered grave injuries through no fault of their own, it is very important that there is the possibility of compensation. It may not be enough for it to be left to the CICA, although I will be interested in what the Minister advises. It would seem completely unconscionable for a state agent to be authorised to commit a crime, for an innocent citizen to suffer grave damage to property or person and for there to be no mechanism for them to have compensation. Further, the civil courts, when combined with investigative journalism, have been a place where a great many scandals and human rights violations of recent decades have been exposed, so “lawful for all purposes” is just as potentially worrying in the civil context as it is in relation to the criminal law.