Counter-Terrorism and Border Security Bill

Lord Bew Excerpts

2nd reading (Hansard - continued): House of Lords & 2nd reading (Minutes of Proceedings - continued): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Bew (CB)]

My Lords, I support the general purposes of the Bill and I thank the Minister for her introduction, in which she stressed that the focus is on the new terrorism. Matters have evolved, she said; things have changed since 2006 and we are not dealing with the same problems we dealt with in the latter part of the last century with respect to Irish terrorism. But she also expressed her concern about those who act with hostile intent on the Irish border and, of course, there is the question of the activity of dissident republican organisations. I would add the slightly surprising point that has come to me in preparing for this debate: there is another dimension to this question of people with hostile intent on the Irish border.

I have taken to reading intensely the Irish expert writers on matters of intelligence and security. They argue two things. One is that Ireland simply cannot have the intelligence infrastructure that the United Kingdom has—the incredible skills of our intelligence services, GCHQ and so on. These simply cannot operate in Ireland. The second is that people of extremist and Islamist views know this and therefore have in some ways made Ireland the backdrop for the unfortunate and tragic events that have happened in this country. Therefore, when the Minister talked about her fears of people with hostile intent on the border—the only land border between the United Kingdom and the European Union—she is entirely right to have a concern, and it might unfortunately be a little broader than I suspect was in her mind when she made the point.

In talking about the Bill, I must express a degree of surprise. The House is well aware of the intensity of the recent debate in this Chamber about a possible Brexit hard border. It was a deeply passionate event and I well remember the noble Lord, Lord Alderdice, explaining that there were circumstances in which he would not be content with Liberty Hall on the Irish border; there were circumstances in which there would have to be checks, which he could envisage without too much stretching of his imagination. Yet the House chose to vote down the Government’s proposal on that day. I think the majority was 65. The general feeling was that any check of any sort on the Irish border was a hard border. Yet tonight, who is saying this?

I was very pleased by the tone of the debate in the other place, which was largely consensual. The points raised by the Opposition Front Bench were perfectly reasonable. Matters that it was suggested we should consider here included the concern about aspects of accountability for actions on the Irish border. But the intensity of the emotion, which the noble Lord, Lord Alderdice, will recall, and the certainty of moral conviction about checks on the border seem to have disappeared entirely, and I do not quite know why. For the Irish Government, I might be able to offer a kind of answer but, believe me, within Ireland itself hackles have been raised by this proposed legislation.

The noble Lord, Lord Anderson, mentioned the Committee on the Administration of Justice. Its objections go far beyond the significant point to be discussed about proscribed organisations and how we handle them. That is a serious point, but its objections go far beyond that. The objection of the influential Committee on the Administration of Justice is that this is another hard border, which we all apparently promised that there would not be. That is its objection. Articles have appeared in Irish newspapers saying that we are establishing a double standard for citizenship between citizens who live on the border and who may be stopped and citizens who live in Ulster and are not likely to be stopped. The phrase “border area”, which appears in the legislation, also requires some comment. I am not referring to these points because I necessarily agree with them, I am saying simply that there is a debate and hackles have been raised.

On the Parliament website there is a description of the Bill:

“To make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes; and for connected purposes”.


That last phrase has been seized on in Ireland: “Ah, this is about smuggling”. Frequently, smuggling is a connected purpose with respect to Irish terrorism. It would not be a stretching of the language for an officer to interpret it in that way because it frequently is and the money is used for the purposes of terrorism. So there has been finger-wagging and the claim that this is indeed a hard border and, not only that, it is actually concerned with matters—well, to be honest, smuggling is a trade in Ireland. Paragraph 9 of Schedule 3 refers specifically to the apprehension of goods. There is no question that that is part of the intention of the Bill.

Personally, I support this but I wonder where all the other people are who were so indignant only a few weeks ago in this Chamber and are so indignant about it in general. I wonder where the Irish Foreign Minister is, who I recall saying on “The Andrew Marr Show” that there could be no checks of any sort on the island of Ireland. This was a moral and psychological blow that no decent Irish nationalist should be forced to live with even the contemplation of. There is a problem with that in that the Irish Government currently carry out checks on their side of the border on individuals they do not want entering their labour market, on quite an extensive scale. All right, perhaps he had temporarily forgotten that, but he was very indignant on this point. But the Irish Government have been silent about the Bill.

The Irish Government do have a difficulty and I will explain what it is. It is in United Nations Security Council Resolution 1373, passed shortly after 9/11, which I know some academic lawyers do not like because they think it is the United Nations Security Council making itself a legislator, but it has remained, with some modification and some further reflection, the byword for the international approach in this matter. Incidentally, just before the turn of the year, the European Union, whose standards on these questions have been invoked many times in the debate, issued a document on Resolution 1373, broadly expressing solidarity with its purposes. The purpose of the resolution was to have border security in the fight against terrorism. Clause 2(g) talks explicitly about the need for “effective border controls” and checks. The problem for the Irish Government is that Ireland was a non-permanent member of the Security Council that passed it—we, of course, are permanent members—and they are now trying to get on the Security Council again as a non-permanent member and it is not particularly good advertising for such a campaign to say, “The last time we were here, we thought this resolution was a fantastic idea. Now we want to get back on the Security Council, we did not mean a word of it”, so they are circumscribed to some degree.

I also hope that another reason the Irish Government have been so calm on this matter is that we are moving towards a compromise on these very difficult issues. There is so much writing by all the informed commentators, all the national and international think tanks, about the damage that will be done to the Irish economy by a hard Brexit that the need for a compromise is becoming painfully obvious. I am hoping that for these reasons we are moving away from the intense and angry mood in which these issues were discussed. But the dog has not barked in the night in the case of the Irish Government. I suspect that if we get a relatively benign resolution—that will be no perfect one—over the next few months, the dog will not bark in the night. But I warn the Minister that we are still in a difficult circumstance because the formal position of the European Union was, “You must stop our internal market being polluted by goods coming over the border from Northern Ireland but you are not allowed to have any checks to stop our internal market being polluted”. It is a brilliant Catch-22 and the only solution is to semi-detach Northern Ireland in a way that the Prime Minister has said is unsatisfactory.

Something has to give here. There has to be a compromise. I very much hope that there will be a compromise. I think there are some signs that there will be one. I end my remarks by saying to the Minister—unkindly, perhaps—that rough tides may be returning to the discussion of this issue; rough tides that we have seen and the noble Lord, Lord Alderdice, saw that night, have infected the way we talk about this issue in this House. I am glad we are in such calm waters and that there was such a significant degree of cross-party consensus in the other place.

Police and Crime Commissioners

Lord Bew Excerpts

Thursday 28th June 2018 Lords Chamber

[Lord Bew (CB)]

My Lords, I thank my noble friend Lord Armstrong of Ilminster for obtaining this debate and for his important speech in introducing it. In the case of Edward Heath, he will know that we have talked about this, and I was the historical adviser to the Bloody Sunday tribunal. The Cabinet documents available to the historical adviser made it clear that Sir Edward Heath’s responsibility for Bloody Sunday could only be nil. None the less, Sir Edward had to appear in court and undergo quite a vigorous cross-examination. The standard of justice he got in Northern Ireland was vastly superior to that which he received in Wiltshire, which we should be a little worried about at this stage of the proceedings.

On the PCCs more generally and their role, I declare an interest as being chairman of the Committee on Standards in Public Life. We produced a report, Command Paper 9057—Tone from the Top: Leadership, Ethics and Accountability in Policing, whose 140 pages I cannot possible summarise in the four minutes available today. It was an attempt to be fair-minded and objective. We heard in the press at the time, as many have heard today, stories of apparently erratic behaviour of police and crime commissioners. We also had many examples of very fine work. We tried to find a balance and to suggest certain reforms. Above all, we were determined to insist that the Nolan principles should have great relevance to the work of modern policing and of police and crime commissioners. The evidence that we saw pointed to greater professionalism and increased visibility by PPCs, as well as a widespread recognition of the importance of the College of Policing’s code of ethics, core policing values and the need for new mechanisms to support high standards of behaviour and propriety. Crucially—the point has already been made by the noble Lords, Lord Wasserman and Lord Bassam, and it is due especially to the work of police and crime commissioners perhaps in the north of the country—there is now much higher visibility in respect of crimes and violence against women in general and not just domestic violence. This is a clear-cut area of success and achievement.

However, there was also clear evidence of significant standards risks. One that the committee highlighted in its report and is particularly relevant to this debate is the continuing confusion over roles and responsibilities, especially where responsibility for governance ends and that for operational decisions begins. That raises key questions of scrutiny and accountability. The noble Lord, Lord Wasserman, who has done important work in this area, said that the accountability of police and crime commissioners was an issue, and I agree. He is also right to draw attention to the concept of recall. We now have recall for Members of Parliament. If in principle we have it for one type of elected official, I cannot see a strong argument for not having it for another. However, when recall was introduced in Parliament, the committee had correspondence with the then Prime Minister David Cameron, in which we said that, if we were to introduce this pit that an MP might fall into, we had a responsibility to ensure that MPs knew beforehand the ethical standards by which they were supposed to live and that it was important to have proper induction, so that the rules and obligations were clear. To the credit of that Prime Minister, he accepted the point completely and supported the committee in this regard. If that is true for MPs who may face recall, it should be true for police and crime commissioners. There must be proper provision of induction courses that explain all the ethical risks and pitfalls that might exist.

When we were going around the country and talking to police and crime commissioners, I was slightly disappointed in respect of this final point. The Nolan principles should apply nationally. We quite understand that the PCCs experiment is all about creative localism and we respect that, but that should not create a context in which police and crime commissioners can evade their commitment to the Nolan principles of accountability above all in public life.

Barnett Formula

Lord Bew Excerpts

Thursday 13th July 2017 Lords Chamber

[Lord Bates]

It is wrong for the noble Baroness to refer to it in that way. First, the details of the deal have been made very clear and published on the website on 26 June. There have been Written Ministerial Statements about it. As for terming this a donation, I stand by a donation that gives £100 million extra for health and education, £400 million for infrastructure, £50 million for mental health, £100 million for severely deprived areas and £150 million for broadband in one of the most needy parts of the United Kingdom.

[Lord Bew (CB)]

In the context of the discussion of a possible needs-based formula, is it worth the Minister noting that Northern Ireland appears to have considerably more disadvantaged young people per percentage of population as against Scotland, and cannot afford the sort of things that Scotland appears to be able to afford, both in certain provisions of social care and in tuition fees?

[Lord Bates]

That is a good point. It is recognised, of course, in a lot of funding that goes through at the moment. When we look at employment in the UK, which we are pleased to say reached record levels this week, we recognise that there is a 75.2% employment rate in England, 74.1% in Scotland, 72.6% in Wales but only 68.7% in Northern Ireland. That is one reason why this is a good investment in the future of young people in Northern Ireland.

Crime and Courts Bill [HL]

Lord Bew Excerpts

Monday 2nd July 2012 Lords Chamber

[Lord Bew]

My Lords, I rise briefly to speak on Amendment 148 and to express my support for the sentiments expressed so eloquently by my noble friend Lord Pannick. There is no doubt, as he made clear, that the case for this amendment has been dramatised by the events of April and May of this year, when the Attorney-General for Northern Ireland raised his intention to bring contempt of court proceedings against Mr Peter Hain, former Secretary of State for Northern Ireland, on the publication of his memoirs and observations that he made therein on a member of the Northern Ireland judiciary and a case of particular importance when he was Secretary of State. The reaction of Parliament was quite dramatic, with 120 MPs rallying to Mr Hain’s defence. In Question Time on 18 April, the right honourable Mr David Blunkett in the other place asked the Prime Minister:

“Should not respect for the independence of the judiciary be balanced with the rights of individuals to fair comment on that judiciary?”.

The Prime Minister replied, expressing sympathy for that sentiment, and said that,

“there are occasions … when judges make critical remarks about politicians; and there are occasions when politicians make critical remarks about judges. To me, that is part of life in a modern democracy, and we ought to keep these things, as far as possible, out of the courtroom”.—[Official Report, Commons, 18/4/12; col. 317.]

In mid-May, following a less than enthusiastic response in the political world to his original move, the Attorney-General for Northern Ireland effectively set aside the proceedings. There has been a tendency to regard the whole business as an explosion of provincial self-regard now thankfully passed, but that is a short-sighted way in which to look at what has happened. The Attorney-General made it clear that he would not have set aside the proceedings until the receipt of the letter from the former Secretary of State for Northern Ireland, Mr Hain. In that letter, Mr Hain effectively argued that it had not been his intention in any way to challenge the independence and fairness of the judiciary in Northern Ireland. This is an important point, because I think it quite likely that the Attorney-General for Northern Ireland had in mind the dictum of Lord Russell of Killowen, perhaps the greatest of all the Northern Irish judges of the last century. In 1900, as Chief Justice of England, he offered a dictum in this sort of case that intention was crucial and that there had to be a calculated and clearly deliberate attempt to challenge the independence of the judiciary. By his letter, the former Secretary of State for Northern Ireland, Mr Hain, put himself on the right side of that dictum by saying that he had no intention in any way to challenge the independence of the judiciary in Northern Ireland.

What this reveals is that the Attorney-General and Sir Declan Morgan, the Lord Chief Justice, as far as I can understand from the remarks that he made at the time that this was a public matter, believe that there was in principle a case in law here, and a legal case that could be taken. That is why we have proposed this amendment. If there is any possibility that there could be such a case brought, which I think would widely be regarded as absurd, we must do what we can to eliminate that possibility.

In this country, we have a long tradition of freedom of speech, from which the judiciary is not immune. John Bunyan’s The Pilgrim’s Progress is a classic example in the 17th century of how that tradition has operated. In the view of those of us who support the amendment, the common-law offence of scandalising the judiciary is obsolete and has an unnecessary chilling effect on free speech.

[Lord Borrie]

My Lords, some 40 years ago I co-authored a text book entitled The Law of Contempt. Some 50 pages were devoted to the subject now before us in this Committee of scandalising the court. I should add that the current edition of that book is written by a group of somewhat younger lawyers, and since my name appears only on the spine of the book I no longer receive any royalties and therefore have no interest to declare. However, I admit to a certain nostalgic interest for this curiously and rather charmingly worded crime of scandalising the court, which is the subject of Amendment 148. It is the opinion of a number of eminent lawyers; in addition to those who have spoken, we also have the noble Lord, Lord Lester of Herne Hill, and the noble and learned Lord, Lord Mackay, whose 85th birthday it is today. That has been recorded already by the Minister.

I accept from the noble Lord, Lord Pannick, that the offence of scandalising the court has somewhat dubious and ancient beginnings and that it has largely fallen into desuetude, at any rate in this country, although it is quite often used in ex-colonies of Britain that have adopted our law. The reason for its doubtful origins is that a Chief Justice in the 18th century gave a judgment that there was such an offence as scandalising the court but never actually gave that judgment in court. It was recorded and given as his view, but that to lawyers is a very dubious precedent.

As for the purpose of the offence, it is said to help to ensure that the authority of the courts is not undermined. Furthermore, potentially at least, as both proponents of the amendment, who have spoken already, have said, the offence or its existence has a chilling effect on freedom of speech and the freedom to criticise judicial decisions. However, I have to admit—this was not mentioned by the two previous speakers—that the 1974 Phillimore committee said that there was not much evidence that the press was unduly inhibited by this aspect of the law. In 1987, the Daily Mirror referred to the judges in the Spycatcher case as “fools”, alongside an upside-down picture of the Members of this House who were sitting in their judicial capacity. No prosecution followed.

It is over a century ago that in the case of Gray, to which the noble Lords, Lord Pannick and Lord Bew, referred, Lord Russell of Killowen said that,

“any act done or writing published calculated to bring a court or a judge into contempt, or to lower his authority, is a contempt of Court”.

I need not give the facts about the references to Mr Justice Darling, as they have been given by the noble Lord, Lord Pannick. In addition to the points that were made, one phrase used by the journalist there was that Mr Justice Darling was,

“a microcosm of conceit and empty-headedness”.

Lord Justice Sedley, a current judge of the Court of Appeal, to whom the noble Lord, Lord Pannick, referred, wrote recently that the reference to Mr Justice Darling was among the,

“finest passages of invective in the annals of British journalism”—

not a bad record, I suppose. I think I am right in saying that there has been no successful prosecution for this offence since 1931. That surely gives a great deal of emphasis to the point made by the noble Lords, Lord Pannick and Lord Bew, that this offence is out of date. There would be hardly any loss, and not much gain either in practical terms, if the crime were abolished.

Universities: Impact of Government Policy

Lord Bew Excerpts

Thursday 13th October 2011 Lords Chamber

[Lord Bew]

My Lords, I, too, thank the noble Lord, Lord Giddens, for securing this important debate. I declare my interests as a working professor at a Russell group university and an honorary fellow of Pembroke College, Cambridge. When my noble friend Lord Luce secured a debate on higher education in June 2008, it was before the collapse of Lehman Brothers and the onset of the serious world economic crisis, which is obviously still with us. Even at that date, it was clear that the relatively golden era of higher education financing was coming to an end.

In the early summer of 2008, Professor Geoff Crossick, chairman of the long-term strategy group of Universities UK, had already said that a much bumpier ride was on the horizon. He drew attention to the significant underlying demographic and financial trends that were already in play. Although that was true, we do not speak at the moment of crisis in the success of our higher education system. In figures for the past week in the Times Higher Education Supplement, there is no evidence of a decline in UK standings. We can see, for example, that the UK has almost three times as many universities in the top 200 as Germany; more than four times as many as Australia; and more than six times as many as Japan. All that is while spending only 1.2 per cent of GDP on higher education, which is less than the 1.5 per cent average across the OECD.

I had a private bet with myself that before I would speak today at least one noble Lord would make the comparison not with the countries that I have mentioned but with the United States. Indeed, my noble friend Lord Krebs made the point admirably that if you control for population and expenditure, there is a case for saying not that we are second to the United States but that we have a stronger system in higher education. People in the higher education sector want to make that point about America due to a perception of government policy. To use the words of the Minister, Mr David Willetts, in a brave letter in the London Review of Books earlier this year, it is a “crude caricature” that the Government’s approach to higher education is dominated by market fundamentalism plus an infatuation with the US. The fact is that that is how it is perceived within the higher education world.

To add a personal note, about a year ago, the Department for Education asked me to take on an independent review of a very controversial issue in our schools system—SATs testing. I was told that our teachers are very angry about SATs; that it is a very fraught topic; and that I would find it very hard. I accept that there was much tough debate. But my guess is that our university senior common rooms are probably angrier than I found our schoolteachers to be during that long year of reviewing policy in that area. Let there be no doubt that SATs testing was and is a very controversial issue among many teachers. There is a mood of exasperation in common rooms.

Perhaps I may offer some help to the Government in this matter. In this economic context, there is relatively little to be done. We face a serious crisis in higher education. However, there is a question of mode of address. On one area, which is not dominated by the economic question and has already been dealt with by the noble Lord, Lord Krebs—immigration of talent into our country and into our academic system—I have nothing to add to what he so eloquently said.

Let me take another issue: the research assessment exercise, now the REF. It is vital to the competitiveness of our system. The Government are quite right to have such a system in place. I know I speak on these Benches on which we have a number of distinguished philosophers, the impact of whose work is in the public domain. However, to ask, for example, certain branches of philosophy to deliver an impact assessment and to demonstrate a broader public impact is fundamentally unreasonable. What it leads to is meretricious behaviour, the puffing out of CVs and bogus claims by academics—all types of things that the Government quite rightly are very sceptical and critical of. These areas of policy are not determined by the economic crisis. Sensitivity to the particular position of academics would do a great deal to improve the quality of debate because frankly I am concerned about the quality of debate that is flowing between academe, universities and the Government at the present time.

Women: Special Operations Executive

Lord Bew Excerpts

Monday 6th June 2011 Lords Chamber

[Lord Bew]

My Lords, I add my congratulations to the noble Baroness, Lady Crawley, on securing the debate tonight and give my strong support for the sentiments expressed in her speech.

An interesting thing about our intelligence services is the way in which they have been more open to the employment of women than other departments of the government machine. It is striking that, during the war, the report by Sir Neville Bland was clearly designed to encourage employment by women in the SIS. Indeed, before the end of the war, the director of production at the SIS said that it was now accepted policy that women should be employed in those appointments for which their qualifications and experience suited them. That was long before such views were widespread in other parts of Whitehall. My colleague at Queen’s University, Belfast, Professor Keith Jeffery, author of the recently published, magisterial volume on MI6, tells me that he believes that there is a seepage of those relatively progressive attitudes from SOE. The great historian of SOE, the great wartime practitioner of those arts, Michael Foot, has confirmed to me, for example, that Colonel Gubbins, later Major-General Sir Colin Gubbins, head of SOE, had no problem with the employment of women. You could not say of Gubbins that he necessarily had the concept of being an equal opportunities employer at the heart of his being or considered himself a feminist, but necessity is the mother of invention and, in 1942, the necessity was pressing to find new recruits, hence the foundation of F Section, referred to by the noble Baroness, Lady Crawley.

In recent years, there has been growing interest in the women of SOE, partly because of the good book by Sarah Helm on Vera Atkins, which has already been mentioned and, undoubtedly, the public dismay following the sad circumstances surrounding the death in Torquay of Eileen Nearne. We can all recall that embarrassing newspaper headline “Forgotten World War II spy tortured by the Nazis, died penniless after her British pension was halted without explanation”. In 1946, Eileen Nearne was declared 100 per cent disabled by a special pensions tribunal as a result of exhaustion and neurosis, but over the next several years, her pension was whittled away and she seems to have received little help with the anguish which was the inevitable legacy of her experience of World War II.

Those are things that make us very uncomfortable. It is clear to me that the issues raised by the noble Baroness, Lady Crawley, tonight are important. I very much hope that the Minister will respond as warmly as possible to the sentiments uttered by the noble Baroness.