Safety of Rwanda (Asylum and Immigration) Bill

Lord Blunkett Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

These amendments or others like them—and there is a good menu of options in this group—give Parliament the tools that it needs to make a judgment that Rwanda is safe. They provide a mechanism for that judgment to be revisited without the need for primary legislation in the event that independent observers find that the situation on the ground has deteriorated. They provide for the Act to be sunsetted in circumstances where the treaty has been terminated. They do not cure the constitutional difficulties of the Bill but they enable the central decision to be made on the basis of evidence rather than dogma, fiction or fantasy. I hope that the Minister agrees that this would be a refreshing change.

[Lord Blunkett (Lab)]

My Lords, I speak to Amendment 8 and associated Amendment 72 in my name. I am grateful to the noble Lord, Lord Kerr, and to the right reverend Prelates the Bishop of Bristol and the Bishop of St Edmundsbury and Ipswich for their support. I have also added my name to Amendment 64 tabled by my noble friend Lord Coaker.

I have tabled Amendment 8 for several reasons in relation to what happens to those who would find themselves translated to Rwanda should this Bill become law and should there be time for the Government to find the mechanisms and processes to make it work, which is in considerable doubt. Nothing that I say this evening should be taken as any endorsement whatever for any part of the Bill, because I do not believe that it will work or that it is acceptable in terms of our international conventions.

I take up the point made at the end of the last group by the Minister, when making a gallant effort to defend the Government, that this is about deterrents. The deterrent is Rwanda. The deterrent is the refusal, through the Nationality and Borders Act and then the Illegal Migration Act, to allow people to claim asylum when they reach our shores if they do not come with the appropriate accreditation and passport. As there are no current resettlement routes outside the particular routes for Ukraine and Hong Kong that are currently working, anyone outside those bespoke processes is denied asylum in the UK. The previous Home Secretary and her predecessor both made it very clear that what they were doing here was indicating that someone who came without those papers and processes was illegal. By being illegal they became, in the words of Suella Braverman, a criminal—they therefore broke our values and should not have the right to be processed here but instead should be transferred to Rwanda.

My amendment and the associated Amendment 72, which deals with the treaty requirements, are very simple. Someone who is offshored and can justify their asylum claim by showing that they are a genuine refugee should be allowed back into the country. That was true of the Australian scheme mentioned earlier, which incidentally was about picking people up in the 1,000 nautical miles of sea before people reached Australia and translating them back to the processing company.

The one thing the Australian scheme had in common with the Rwanda scheme is the cost: it ended up at £1 million per individual, which is what we will end up with here. They had that in common.

What the Rwanda scheme does not have in common with the proposition from, I repeat what I said a few weeks ago, the very far-right Prime Minister of Italy, the leader of Brothers of Italy—I do not know whether Members on the Benches opposite accept that she is a genuine right-winger—for offshoring to Albania is that those who are adjudged to be asylum claimants and shown to have refugee status will be transported back to Italy. They have the right to come back to the country that originally transported them out.

I want to make this clear, although at this time of night the message probably will not get across, but I do not believe that Members of the House of Commons understood what they were passing. I do not mean to be patronising, but I just think that they did not take account of the detail; neither did the public. I do not think they understood that it is a one-way ticket. We are not offshoring by any known concept of that process, but showing Rwanda, as I just described, to be a threat. If it is a threat, it is a threat. What is the threat about Rwanda? It is that it is Rwanda.

The Bill is a one-way ticket that, bizarrely, allows asylum to be claimed or not. In the responses at the end—and I gave notice of this at Second Reading—I would be interested in knowing what happens if someone who is not allowed to claim asylum in the UK, having been transported to Rwanda, chooses not to claim asylum in Rwanda. It cannot be presumed that, because they had tried to claim asylum in the UK and were criminalised when denied it, they would claim asylum in Rwanda. Perhaps we could park that and someone can give me an answer.

Let us say that they do claim asylum in Rwanda: they will end up no different from those who have not claimed asylum, because they will be in Rwanda. Sadly, those who have demonstrated their legitimate claim to asylum, and therefore are refugees by every international convention, will be in exactly the same position as those who are adjudged not to be refugees but who remain in asylum. The only two categories among those who can reach the UK from Rwanda are those who are claiming asylum in the United Kingdom as Rwandans, or those who cannot be transported from Rwanda to the country of their origin because it is unsafe and who are allowed back under the Bill. Those are the only two categories. Those who are not allowed back are those who have actually demonstrated their refugee status. This is Alice in Wonderland stuff; it is absurd.

If this is all about sending signals to the traffickers that their business model is broken, we would really be breaking the asylum seekers rather than the organised criminals. They would simply say to people, “If you are going to be transported to Rwanda, but you demonstrate your refugee status, you will remain in Rwanda, just as those who do not will remain in Rwanda”, the asylum seekers will disappear into the ether. Organised criminals are to be dealt with in subsequent groups in Committee. Genuine refugees will find themselves in the hands of organised criminals and part of modern slavery. We know that that will happen, because that is what organised traffickers will tell asylum seekers: “We will give you a telephone number. Ring it, and we’ll find you a job and a bed, and we’ll own you”.

If there is anything moral in how we stop people coming across the channel in dangerous small boats, it is not the morality of sending away the organised traffickers. It is the immorality of encouraging people to disappear into the hands of those same organised criminals.

I am suggesting that—as with Giorgia Meloni, and every other system in the world that has ever existed, as far as I know—those who demonstrate their refugee status, and have been transported from the country they finally reached, should be allowed to come back as refugees. It might not fit the threat of Rwanda that we talked about earlier, and will talk about in subsequent groups, but it would fit our commitment to our international obligations and the human rights of those individuals. If we do not do that, we are developing a concept of the United Kingdom as a country that will not only breach all international conventions that we have signed but our basic morality. That would be demonstrably dangerous for this country and other parts of the world in years to come.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, the full incoherence and madness of the Bill has just been exemplified in the speech of the noble Lord, Lord Blunkett. The many possibilities here are incredible, such as the idea that asylum seekers may well receive the advice that when they get to Rwanda they should not apply for asylum. What do the Rwandan people do then? We should ask ourselves that question: where do you send them back to? To Britain, whence they came—they are not applying for asylum here—or back to France, our great partner in trying to deal with the crime that is emanating across Europe, with which we need to be collaborative, and need intelligence and serious investigation into criminal gangs?

I was rather attracted by the suggestion of the noble and learned Lord, Lord Hope, that we change the tense and make it about the future: that if Rwanda does become the safe country we are being asked to vote that it is, that we feel it has a legal system capable of making these assessments, and it is properly monitored, and we receive evidence—I have mentioned evidence before—we must be sure of that, and putting it into the future might be rather appealing. The one thing I had concerns about was when the noble and learned Lord said that this would not cause delay. I am hoping that there will be delay.

I do not want to see people being flown to a place in which this great project of modernising and improving the system will take place. If it is going to happen at all, I want it to have happened before we send anybody there. I happen to take the view, unpopular among many, that exporting people and sending them away is part of the problem. We are not doing as Italy’s ultra-radical, proto-fascist leader Ms Meloni is doing, which is asking the Albanians to do on Italy’s behalf what the Italian system would be doing. We are not asking for that; we are sending them there. We are exporting a problem.

I am concerned about the issue of delay and perhaps the noble and learned Lord, Lord Hope, will respond at some stage. I see him getting to his feet; maybe he can help me.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for speaking in this group, and in particular the noble and learned Lord, Lord Hope, for his introduction.

The UK and Rwanda entered into the migration and economic development partnership with a commitment to develop new ways of managing flows of irregular migration by promoting durable solutions, and so breaking the existing incentives that make people embark on dangerous journeys to the UK. The UK and the Government of Rwanda have a shared vision regarding the necessity for the global community to enhance international protection for asylum seekers and refugees, underlining the importance of effective and operational systems that provide protection to those most in need.

This partnership is part of a suite of measures to tackle illegal migration and builds on wider collaboration with Rwanda on many shared issues. As I have set out previously, we have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited. The treaty itself will follow the usual process with regards to scrutiny and ratification. I say to the right reverend Prelate the Bishop of Norwich that I am afraid I cannot improve on that, and I will continue to defer to the Home Secretary.

I would like to provide reassurance to noble Lords that the treaty enhances the role of the previously established independent monitoring committee, which will ensure that obligations under the treaty are adhered to in practice and will be able to take steps to address any concerns at an early stage. Therefore, the Government argue that the amendments in the name of the noble and learned Lord, Lord Hope of Craighead, are not necessary, although I of course take his points about words. As the noble and learned Lord said, the Bill reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty to people relocated to Rwanda in accordance with the treaty. It addresses the point made by the Supreme Court that Rwanda’s systems could be strengthened, on the basis of the facts before the Supreme Court at the time.

Amendment 14 in particular would impose a requirement for the joint committee for the migration and economic development partnership to provide a declaration to the Secretary of State confirming that the mechanisms specified in Article 2 of the treaty have been implemented. Without such a declaration, the effect of the amendment would be that the treaty could not be regarded as fully implemented. This is unnecessary. We have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited.

I turn to Amendments 15, 16, 77, 83 and 88 in the name of the noble Lord, Lord Anderson of Ipswich, and Amendments 64 and 65 in the name of the noble Lord, Lord Coaker. The monitoring committee is independent of both the UK and Rwandan Governments. It was established under the memorandum of understanding that originally underpinned the partnership. The treaty enhances the monitoring committee’s role. Article 15 of the treaty provides that the UK and Rwanda must establish and maintain a monitoring committee for the duration of the term of the agreement. This means that both parties are obliged to ensure that the monitoring committee continues in operation for the life of the agreement, and this obligation is binding in international law.

The Government have already established robust reporting mechanisms. The monitoring committee’s terms of reference and enhanced monitoring plan are available publicly on GOV.UK. They set out that, during the period of enhanced monitoring, the monitoring committee will report to the joint committee, which is made up of both UK and Rwandan officials—as set out in Article 15(4)(b)—in accordance with an agreed action plan, which will include weekly and bi-weekly reporting as required.

It would be helpful to go into more detail on this. The treaty includes enhanced provisions to provide real-time independent scrutiny of Rwanda’s asylum procedures, aimed at preventing the risk of mistreatment contrary to Article 3 of the ECHR before it has the chance to occur. This addresses the findings in the Supreme Court proceedings that under the previous arrangements, as set out in the memorandum of understanding, the work of the monitoring committee would necessarily be retrospective.

In addition, the new provision of the monitoring committee’s own complaints system will allow relocated individuals and their legal adviser to make direct and confidential complaints regarding any alleged failure to comply with the obligations in the agreement. That enhanced phase will ensure that monitoring and reporting take place in real time, so that the monitoring committee can rapidly identify, address and respond to any shortcomings or failures to comply with the obligations in the agreement, identify areas for improvement, or urgently escalate issues prior to any shortcomings or breaches placing a relocated individual at risk of real harm. That will include reporting to the joint committee co-chairs within 24 hours in emergency or urgent situations.

As per Article 15(4)(c) of the treaty, the monitoring committee will make any recommendations to the joint committee that it sees fit. The monitoring committee will otherwise produce a formal written report for the joint committee on a quarterly basis over the first two years of the partnership, setting out its findings and making any recommendations. Following notification to the joint committee, the monitoring committee may publish reports on its findings as it sees fit. At least once a year, it will produce a summary report for publication. We consequently consider these arrangements, which have been carefully agreed with the Government of Rwanda and will be binding in international law, to be sufficient to ensure continued compliance with all the terms of the treaty.

Finally, I am grateful to the noble Lord, Lord Blunkett, for his Amendments 8 and 72. Clause 1 sets out the obligations to which the Government of Rwanda have committed under the new treaty. The proposal in these amendments does not reflect the arrangements under the treaty. Requiring persons whose claims are successful in Rwanda to be returned to the UK would be against the spirit and intention of the treaty and the partnership. Those relocated to Rwanda are not intended to be returned to the UK, except in very limited circumstances.

It is the Government of Rwanda who will grant refugee status to those relocated to Rwanda through the treaty, which will underpin the migration and economic development partnership, not the UK Government. The grant of refugee status in Rwanda does not confer on that person any rights in the UK, as would be the case for any other person granted refugee status in Rwanda who had not been relocated from the UK. Anyone who wishes to come to the UK in future would have to apply through legal routes—through a work or family route. However, there would be no guarantee that they would be accepted.

As my noble friend Lord Murray of Blidworth noted, relocating asylum seekers to a safe third country to process their claim is compliant with the UK’s obligations under the refugee convention, as confirmed by the High Court and the Court of Appeal. The Supreme Court did not disturb that finding.

[Lord Blunkett (Lab)]

Perhaps the Minister will answer two very simple questions. First, where else in the world have people been offshored but actually offloaded, as opposed to having the process completed and their refugee status acknowledged in the country they have reached? Secondly, what happens if people do not claim asylum in Rwanda?

[Lord Sharpe of Epsom (Con)]

Under the terms of the Bill, a person will be relocated if they have made a protection claim—that is, an asylum claim—in the UK. But, to be clear, we can also remove those who do not. On the other point, we have heard a very lively debate on other examples from around the world; I am afraid that I am not an expert on those examples, so I am not able to opine further.

Asylum Seekers: Convictions

Lord Blunkett Excerpts

Thursday 8th February 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, there are several reasons why a decision may be overturned at appeal, including new evidence that was not available to asylum caseworkers. Where a crime has been committed, it will be considered whether the person committing the crime poses a danger to the community and should be denied protection. As for the matter of Christian conversions that my noble friend raised, it is important to bear in mind that the Christian church—the Church of England—is not an arm of the Home Office, and that conversion is not a bureaucratic exercise but rather a matter of the operation of grace, such as we heard from the right reverend Prelate earlier.

[Lord Blunkett (Lab)]

My Lords, will the Minister confirm that this is absolutely nothing to do with foreign courts? If the system, as outlined by the noble Lord, Lord Jackson, is broken, there have been 14 years for this Government to put it right. Is it not correct that, from 2004 onwards, the restriction was already in place in relation to the removal of those who had committed crimes—including sexual crimes—enhanced, yes, by the Nationality and Borders Act 2022? Is it not the process, rather than anything to do with the law, that requires examination?

[Lord Stewart of Dirleton (Con)]

My Lords, any foreign national convicted of a crime and given a prison sentence is considered for deportation at the earliest opportunity. Under the legislation to which the noble Lord referred, the UK Borders Act 2007, a deportation order must be made where a foreign national has been convicted of an offence and received a custodial sentence of at least 12 months. As to the other matters raised in the question, it is important to remember that restrictions on returning persons to the countries from whence they came are also matters of our international obligations, including treaties such as the European Convention on Human Rights.

Rule of Law

Lord Blunkett Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

My Lords, we are not showing scant regard for our treaty obligations. We are endeavouring to allow for a contingency that may arise very soon, which will require us to ensure that we can discharge our obligations to Northern Ireland. That creates difficulties, so far as the direct effect of EU law is concerned, if there is no post-transition agreement and no determinations by the Joint Committee.

[Lord Blunkett (Lab)]

As a non-lawyer, I ask a simple question. Alongside the breach of our international obligations, is this not a breach of respect for Parliament and democracy, given that the Prime Minister signed up to this agreement, forced it through as part of the Act and knows perfectly well that it is nothing to do with the negotiations towards the end of this year, but an admission of complete failure to understand what he was putting through Parliament?

[Lord Keen of Elie (Con) [V]]

I do not accept that. This is not a case of the Executive or Ministers seeking to act contrary to the will of Parliament. This is a case in which Ministers have brought legislation and laid it before Parliament for Parliament to determine whether provision should be made for the contingencies to which I have referred. This shows complete respect for Parliament and if, at the end of the day, Parliament and this House do not wish to confer the ability to deal with these contingencies on Ministers, they will not. It is a matter for Parliament.

Human Rights Act 1998 (Remedial) Order 2019

Lord Blunkett Excerpts

Thursday 3rd September 2020 Grand Committee

[Lord Blunkett (Lab)]

I am very grateful to the noble Baroness for spelling out so clearly and concisely the purpose of the remedial order. I am as much here on a Thursday evening to learn, as I often am in the House of Lords, as to contribute, but I think that we have to be much clearer about what we are doing.

I am in favour of the reinterpretation of Article 5(5) —that is what the remedial order does—and the ability to provide redress when mistakes are made in the form of the kind of award we are discussing tonight. However, we should not be under any illusion that we are maintaining judicial immunity. There will undoubtedly be drift in how this remedial order is subsequently interpreted regarding the extension of the Human Rights Act. It raises also the issue of the incorporation of the ECHR into the Human Rights Act back in 1998 and what was anticipated at the time.

In addition, although I am not concerned about Henry VIII powers in this particular instance, it raises the question of whether this should have been part of primary legislation rather than an adjustment through a remedial order to the primary legislation. While it is perfectly reasonable to provide compensation in the individual case that was taken through the European court, other interpretations of mistakes made—inadvertently and therefore not deliberately—will undoubtedly arise. I am not entirely clear how judicial immunity is maintained in those circumstances, not least because anyone who has spent any time reviewing how judicial oversight of the court system itself works will note that very often it does not work well. Failure to provide counsel in this particular instance is just one of many mistakes that inadvertently might lead to an injustice.

Tonight, therefore, in approving the remedial order, I think that we should be much more open to understanding the likely implications down the line.

Probate Service

Lord Blunkett Excerpts

Monday 27th July 2020 Lords Chamber

[Lord Keen of Elie [V]]

My Lords, I emphasise the improvement that took place in the grant of probate during 2019 and into 2020, even in the face of the increased demand on the probate service as a result of the Covid crisis. As a result, we are seeing a turnaround in the grant of probate that allows for the present system on payments to be accommodated. We have no proposals regarding my noble friend’s latter point.

[Lord Blunkett (Lab) [V]]

My heart goes out to the noble Baroness, Lady Ludford, who demonstrated the personal heartache that comes when systems do not work. Could the Minister reflect on the fact that the Courts & Tribunals Service has always been under major pressure, not least because of the use of agency staff? What plans are in place for when staff who have been reallocated to probate go back to their normal working lives?

[Lord Keen of Elie [V]]

My Lords, we have undertaken the training of an additional 34 staff in the probate service. In addition, as district probate registries close in the light of the development of the digital applications, we have sought to retain some of those staff within the courts and tribunal system for probation work. However, other staff are allocated to other parts of the Courts & Tribunals Service.

Prisoners (Disclosure of Information About Victims) Bill

Lord Blunkett Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

[Baroness Newlove (Con) [V]]

My Lords, I was unable to attend Second Reading due to logistical circumstances resulting from Covid-19. I was therefore delighted to watch the speech of my noble friend Lady Finn. I was further delighted to watch Committee and the debate on the amendment from the noble Baroness, Lady Barker. Sadly, it resonated not just with what I am going through, but with many victims whom I saw in my former role as Victims’ Commissioner for England and Wales.

The Bill has been of not only professional interest to me, but personal. I must declare that I know Marie McCourt very well and the organisation she has set up. I have true admiration for Marie for facing the challenges over the years in wanting to know where the body of her late daughter, Helen McCourt, is lying. That must be heartbreaking, and she is fighting against time. That is why I am grateful to the noble Baronesses, Lady Kennedy and Lady Barker, and the noble Lord, Lord German, and support this amendment tabled by them.

Victims must be given correct information right the way through the criminal justice system. After all, they are involved in the process. You cannot split the two. I see for myself the strain on Marie’s body of ensuring she gets justice for Helen, hence what the Bill is about: Helen’s law. I also understand that people from the noble judiciary will have concerns about the rule of law and the human rights and mental state of the offender. I am very dignified in what I have to go through personally, and Marie is exactly the same. I understand that this legislation would not apply to many prisoners, but that is not the point, because we should not further remove the needs of the families of the victims, causing them to suffer more than anybody else in our criminal justice system.

Speaking as somebody who is currently going through the parole system and finding information while in the victim contact scheme, as the noble Baroness, Lady Kennedy, mentioned, and speaking to the Victims’ Commissioner, I say that victims have to be able to opt out of this scheme. Too many victims are given this information at a traumatic stage. We are also seeing a cut to victim liaison officers, who are the relationship between the offender and the victim.

I am not asking to remove the rights of an offender, I am asking that the Bill thinks about the victim on a level playing field. It has taken many years for Marie to get this where it is. As somebody who knows exactly what it feels like, I ask your Lordships to understand that this is a balance for victims. The victim contact scheme has many options—and no disrespect to what my noble and learned friend will say at the Dispatch Box, but it is very piecemeal. You are waiting around for information; you are waiting for that phone call. You just have to wait. You have no control. This amendment gives a duty to the Parole Board, as the Bill will state that it is a legal duty for the Parole Board to ensure that it always considers victims from the beginning to the end.

Many people do not understand what a victim personal statement feels like to write and read out to people, whether by videolink or on a prison estate. I can assure noble Lords that it is heart-rending and emotional and, when you come to the last word and the last full stop, you are asked to leave the room. I have attended many as Victims’ Commissioner and I have seen the discourteous attitude of offenders who are not bothered and their legal representatives who want them not to speak. But taking the emotion out of this, this proposal sets the right footing to go along with the national Victims Strategy that the Government released 18 months ago. We have to balance them for the sake of our criminal justice system; to give victims the confidence to do what it says on the tin.

There are not many such prisoners, but families who are going through this are running out of time once they know the prisoner will be released. While victims are given exclusion zones—another issue that I am personally dealing with at the moment—that does not reduce the anxiety that you suffer on a daily basis. For all you know, the offender coming out of prison knows exactly where the body lies and exactly what community you live in. The body could be right there, and he could disturb you again. That is too little and too late to give confidence for our victims. That is why I support the amendment to get a database for victims so that they feel that they are at the centre of the Parole Board’s system.

Please include this proposal in the Bill for the reasons that victims have challenged for many years—for their heartache to be recognised and to give them some closure, because, at the end of the day, the criminal justice system should be a level playing field for everybody.

[Lord Blunkett (Lab) [V]]

My Lords, I follow the noble Baroness, Lady Newlove, with some humility. She speaks from the heart and from bitter experience. I got to know and respect her greatly from the time we spent on committees together. I also pay tribute to Marie McCourt—whose campaign has been so dedicated and now, I hope, effective—and to my noble friends who put together this amendment.

I spoke in Committee about the issue of those who would never disclose where bodies were buried and drew attention to the tragic impact of the behaviour of the Moors murderers on the family of Keith Bennett all those many years ago. But I want this afternoon to refer to a case that is not about a body that was not disclosed by the perpetrator but the simple issue of a failure to disclose when someone is released or there is a change in their circumstances. That was brought to my attention by Frances Lawrence, the widow of Philip Lawrence, who was a head teacher murdered many years ago. Frances was supported by the then Home Secretary—now the noble Lord, Lord Howard—and my predecessor as Home Secretary, Jack Straw. When I became Home Secretary, it was my privilege to introduce the first substantive measure in relation to victims through the Domestic Violence, Crime and Victims Act 2004.

We have come a long way since those days, and mention has already been made of the greater ease that technology now provides for the Parole Board to be able to keep in touch but also to have a double or triple lock on the way in which proceedings sometimes go wrong. Therefore, there can be little excuse for the failure within the system to notify the victims when there is a change in the perpetrator’s circumstances. It is crucial that that should take place, given—as has been spelled out much more eloquently than I can this afternoon—the pain and distress that comes from finding that information out in a phone call from the media, reading it in the local newspaper or hearing it on the radio. If we can do anything to alleviate that, we should do it, and I can see no reason for not accepting the amendment.

There are times when we can see technicalities or difficulties in process or the way in which bureaucracy might be increased. Perhaps we can see administrative or bureaucratic reasons why something would not work. I see none of those in this amendment, and I hope that we will approve it.

Sentencing Bill [HL]

Lord Blunkett Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord Blunkett (Lab) [V]]

My Lords, I am very pleased to follow the noble and learned Lord and to pick up the issue of trying to find our way through the morass, to which, I have to admit, I contributed as Home Secretary, with responsibility for justice and sentencing, with a plethora of legislation between 2001 and 2004. The only part of the Criminal Justice Act that I am not proud of is the element relating to indeterminate sentences, not because the intention was wrong, but because the implementation was left far too much to chance—or what I might have called, to pick up the pieces from the earlier contribution, common sense.

The 2012 research undertaken by the Law Commission, to which I also pay tribute, discovered that 36% of sentences were wrongly applied, in one way or another, which is staggering. I had hoped that the Sentencing Guidelines Council, which we set up in the Criminal Justice Act, would have been able to provide the kind of guidance that the noble and learned Lord just referred to, but sadly not. The codification, alongside this consolidation, gives us the opportunity for much greater clarity for the offender, those perpetrated against and those operating the criminal justice system.

I will refer briefly to Part 4 and seek the Minister’s clarification on an issue that is now under extended sentences but was under IPP. It is where somebody is involved in a breach. We still have people, even from 2012, when the IPP was abolished, returned to prison and given a sentence relating to the IPP for, sometimes, a minor breach, which results in extending an already dubious procedure. Could the Minister clarify whether, under the clean break element of this, these matters can now be cleared up once and for all in the interests of justice? I think it is in Clause 273, but there are 420 clauses. With the capacity I have at the moment out of London, I am relying a little more on the seat of my pants than I normally would.

Finally, I hope the follow-through to this will be extremely good training for all those involved at every level of the criminal justice system. It struck me in 2003 that that really was the missing element.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Blunkett Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, the matter has been so fully covered by the speeches already made that I have little to add, other than my full support for what has been said. However, I wish to emphasise three points.

First, the devolution arrangements in this clause have always troubled me. I refer to what I see as a lack of clarity about whether it is the Scottish Ministers or the Secretary of State who will exercise the powers referred to in Clause 2(1) in relation to “implementing” the international agreement on the one hand and “applying” it on the other. This is an indication, surely, that the Bill is seeking to crowd too much into this clause. It would be far better to leave these matters to primary legislation according to the ordinary and well-understood rules as to which legislature is to deal with what, according to what is reserved and what is not.

Secondly, the umbrella phrase “any international agreement”—I stress the word “any”—indicates that it is intended to catch a wide variety of international transactions relating to private international law. At present, leaving aside Lugano, we have no idea of what they might be. It seems likely, however, that they will not be many, but any one of them could be very important and raise issues which should not be left to the exercise of Executive power. The pressure on Parliament if we were to proceed by way of a Public Bill in the ordinary way and not by way of statutory instrument would be quite limited. Therefore, it is hard to see why we have to go down this road at all.

Thirdly, there is no sunset clause in the Bill. I could understand it if it had been intended to deal only with measures that needed to be in force before the end of the implementation period or measures that were otherwise urgent and short term, but, without such a clause, this Bill is entirely open ended. Committing all international agreements to the statutory instrument procedure at Westminster and in the devolved legislatures as a permanent feature of our law, whatever the political situation might be, seems to be highly undesirable.

[Lord Blunkett (Lab) [V]]

My Lords, I speak in support of my noble and learned friend. He will recall that in Committee, when we debated this matter briefly, the noble and learned Lord, Lord Garnier, laid down a challenge. He said that those who are in government are in favour of secondary legislation but, when they are in opposition, they are against it. I think that the case has been made this afternoon very clearly that this is an extension of the way in which Governments apply secondary legislation, and the Constitution Committee and Delegated Powers Committee have reinforced that very strongly.

As a politician—I am not a lawyer, although I am in the company of distinguished lawyers—I am reminded of the kinds of proposals that used to be brought before Labour Party conferences in the 1980s. A number of rather sensible measures—my noble and learned friend mentioned the 1996, 2005 and 2007 measures—are completely undermined by something highly controversial and unnecessary which is thrown in.

We are dealing with this matter in our virtual Parliament and seeking to find a way through. I hope that, as this amendment to delete this clause is pushed to a vote, the Government will think again and be prepared to attend to the major issues, rather than push through an extension of delegated power, including to complementary and associated measures and model laws, as has been described. We could then have wholehearted agreement.

[Lord Thomas of Cwmgiedd (CB) [V]]

I too support this amendment. In the light of what has been said by the noble Lords and noble and learned Lords who have already spoken, I can confine my remarks to a very few sentences.

Essentially, the constitutional position is one of long standing and should not be changed without justification. That justification has to be seen in the context of a significant move towards Bills becoming more of a framework and with more being done by secondary legislation. We should take a firm stand that that should happen only where necessary. No justification has been put forward for it being necessary. For example, most international conventions and model laws are negotiated at a glacial pace. There can rarely be any justification for the need for legislation to be implemented quickly.

I should add that of course there might have been an exception in the case of Lugano but, as the noble and learned Lord, Lord Falconer of Thoroton, has already explained, that could have been dealt with. Of course, it is a convention that many lawyers in the UK want and hope that we shall accede to in the interests of the UK economy and of the position of London, but the Minister has taken the view that the clause cannot be confined to that. In those circumstances, I fully support, and will support in a Division, the amendment put forward by the noble and learned Lord, Lord Falconer.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Blunkett Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

I think that makes the case for these amendments, probing or not, compelling. In Amendment 20(2)(c) there is provision for other persons or organisations representing various interests that might substantially be affected by the proposals. There is a mechanism for consulting those bodies. I do not think it is a matter for consultation only among the legal parts of the state but among all those who have to try to make sense of it for British citizens when they find themselves in trouble. You want the maximum guidance possible and therefore maximum visibility of what has been decided. Henry VIII powers do not generally do that so I say, with great respect, to the noble and learned Lord, Lord Garnier, that we may all find ourselves arguing for these things in particular cases but the reality is that it needs to be in a clear, accessible and visible form if we are to really help people who fall into difficulty with these laws. In my view, there is an obligation to help them. Private international law is not much discussed. It does not help them at all. We are duty bound to do so.

[Lord Blunkett (Lab)]

My Lords, at this point in Committee deliberations, I often find that we have had tedious repetition, some of it very necessary in terms of underlying principles. On this occasion, some extremely valuable contributions have brought in extraneous issues that I certainly had not thought of, including those raised by my noble friend Lord Hain.

I speak in support of the points raised by my noble and learned friend Lord Falconer. He and I shared the pleasure of working together when the Home Office had what are now the powers of the justice ministry. We were, of course, faced from time to time with the desire to engage with a plethora of delegated legislation which would ease our burden and make the business of government easier. The noble and learned Lord, Lord Garnier, is correct in identifying that Governments wish to do this and Oppositions seek to check it. That is a perfectly reasonable combination because Governments have the dynamic of seeking to deal with issues that they will return to in an easier form and Oppositions, quite rightly, have to challenge, as is the case this afternoon, the reasons for that and whether they are acceptable.

I take, for instance, my noble and learned friend Lord Thomas of Cwmgiedd’s third point about the framework of legislation now, in which we have become accustomed to dealing with underpinning issues. However, when principles relate to the extension of criminal offences and penalties, as my noble and learned friend pointed out at the beginning of this debate, we have to be extremely cautious.

The noble Lord, Lord Thomas of Gresford, in a very entertaining and important diversion, referred to our present situation not just in terms of the underpinning measures that allow people to travel great distances but not to stay overnight, which are perverse in terms of trying to get Parliament up and running, by the way. Measures have applied in history, sometimes by necessity, such as Regulation 18B in 1940, but with consequences that had to be dealt with at length, with the picking up of thousands of people, some of whom should never have been interned in the way they were. Caution is always valuable in these circumstances so that consequential and unforeseen actions are avoided wherever possible. An example is the laying of regulations under both Public Health Acts and the emergency powers that we passed through this House on 25 and 26 March this year, which will be laid in the Commons later this afternoon, in respect of unworkable laws attempting to quarantine people coming from countries with less infection than we have ourselves.

Caution is necessary to make good law, as the noble and learned Lord, Lord Garnier, said. It tries to look down the line at what the consequential outcomes might be. That is why I think this has been a very useful debate and I hope that the noble and learned Lord, Lord Keen, will reflect on this, given that, as the noble and learned Lord, Lord Garnier, said, substantial majority Governments can push through whatever they like but other people have to live with the consequences.

[Lord Marks of Henley-on-Thames]

My Lords, on these Benches we are firmly with the noble and learned Lord, Lord Falconer, in opposing Clause 2 of the Bill, in line with the virtually unanimous view of those who spoke on 13 May and for all the reasons stated on day one in Committee. We will support the noble and learned Lord in opposing Clause 2 on Report. Therefore, it is with some regret that I find myself disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, in particular in respect of the creation of criminal offences. He seemed to be suggesting that such offences would derive from the provisions of the international treaties themselves, rather than the provisions of the delegated legislation and, for that reason, the power in the Bill should be accepted.

However, that is not inevitably so. Under the Bill as it stands, new criminal offences could be introduced by the regulations giving the force of domestic law to private international law conventions and the implementation of those conventions, not by the treaties themselves. I therefore agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, on that issue and the possibility that he raised of new offences being introduced under the regulations.

These two amendments are, of course, alternatives to the removal of Clause 2, as the noble and learned Lord, Lord Falconer, pointed out. Both amendments would plainly be right if we came to the position, contrary to what we believe should happen, that we were stuck with Clause 2. Amendment 19 on criminal offences raises an important principle. I agree with and endorse everything said by my noble friend Lord Thomas of Gresford, as supported by the noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Hope of Craighead, and the noble Lord, Lord Kennedy of Southwark. In this country we have always had a strong and principled objection to making new criminal offences or otherwise changing the criminal law by secondary legislation. The noble Baroness, Lady Jones of Moulsecoomb, expressed that principle forcefully and eloquently. It is an important principle, which I think we should be very firm about upholding.

Amendment 20 is on the super-affirmative procedure. Of course, it would be better than the affirmative procedure and clearly better than any negative procedure —which is not proposed. However, it is a poor alternative to requiring primary legislation to give international treaties the force of domestic law. Paragraph 31.14 of Erskine May says this about the super-affirmative procedure:

“The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. (It should be noted that the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.)”


That paragraph is accurate in respect of the super-affirmative procedure proposed by the noble and learned Lord’s Amendment 20. It follows that Parliament would have no right to amend, and that is why super-affirmative is still a poor alternative. It ultimately leaves legislative power with Ministers and not with Parliament.

It is also a fact that success in changing delegated legislation by the super-affirmative procedure comes very rarely—a point made by the noble and learned Lord, Lord Garnier. We perhaps ought to return to that matter in the future. We should perhaps try to formulate a procedure that goes some way to meet the criticism he made—a procedure that permits Parliament to approve an instrument conditionally on its being amended in a way acceptable to both Houses. That might solve some of the problems that we have with delegated legislation. But I agree that that is for another day. Our position is that we support these amendments if we are stuck with having to use them in place of striking out Clause 2.

Prisoners (Disclosure of Information About Victims) Bill

Lord Blunkett Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[Lord Blencathra (Con)]

My Lords, these little amendments are straightforward—at least, in my view. If passed, they would make it mandatory for the Parole Board not to release any prisoners who refused to divulge where and how they have disposed of the bodies of their victims. I have built in an exception for the minority who may have genuine and irreversible memory loss and are therefore unable to state that.

The reason for the amendments s quite simple. We all know that even when there is no criminality but a person is killed and no body is found, or someone is lost at sea, relatives find it very difficult to get closure. But where someone has been murdered, we have all seen the terrible distress of the parents—for example, of the Moors murders victims or of those murdered by the IRA—when the perpetrators will not reveal what they did with the bodies. It is, we are all told, one of the most difficult things for relatives to contend with. Can one imagine the anguish and the sheer injustice of it if a convict refuses to reveal what they have done with the victims, they continue to thumb their nose at the relatives of the victims and the Parole Board, but they can still be considered for early release?

My noble and learned friend and other noble and learned friends may say, “Well, don’t worry, in those circumstances the Parole Board would be highly unlikely to release that convict”, but why should it be at the discretion of the Parole Board based on its “belief” as to a person’s honesty and integrity?

If a convict, in full possession of their faculties and their memory, refuses to divulge what they did with the bodies of their victims, why should the Parole Board be put in the invidious position of having to come to a subjective judgment based on psychologists’ reports. Parliament should say that, in such circumstances, no one will be considered—I stress “considered”—for early release until they say what they have done with the bodies. If a convict refuses to admit that they have done anything wrong in killing someone, would they be considered for release? I believe not. Thus, if they will not talk about the disposal of their victims, they should automatically be excluded from any consideration of early release.

It is not as if the Parole Board has a great track record of coming to the right judgments, as we have seen in the Worboys cabbie rapist case. He should never have been considered for early release and is rightly still behind bars.

Only last week, Mr Justin Russell, the Chief Inspector of Probation, released a report stating that the number of murders by offenders released on probation rose from 70 in 2015 to 114 in 2018, an incredible increase and a fifth of all homicides in England and Wales. Of these, two-thirds had been assessed as “low or medium” risk on release, which meant that there was a lesser level of supervision and checks by probation officers and police.

This is not the time or place for me to set out my views on the naivety of many on the Parole Board, who swallow any old guff that the psychologists put in front of them: that a convict has seen the error of their ways and is now safe to release. Indeed, I do not have to make that observation, since the statistics that I have just cited speak for themselves.

Sociopaths, psychopaths, serial killers and rapists such as Ian Brady, Worboys and Joseph McCann are incredibly devious and calculating. If they can qualify for consideration for early release by keeping quiet about what they did with the bodies, why on earth should they own up? By doing so, they might trigger a further investigation which could lead to a further charge for another murder. Also, there might be such revulsion at how they disposed of the bodies that no Parole Board would ever dare consider them for early release. Therefore, there is an incentive for them to keep quiet and let everyone think that they killed their victims nicely and gave them a Christian burial.

We should use the certainty of no consideration for early release as the only weapon we have to get those people to talk. The Parole Board cannot do that, since the Bill allows them to consider their application and come to a belief judgment. If we remove that possibility, there is a chance of getting them to talk about what they did to the bodies. For the sake of grieving relatives and for the sake of justice, I beg to move.

[Lord Blunkett (Lab)]

My Lords, I support the amendments because of the change that took place when the challenge to the right of the Home Secretary went through the judicial system and the safeguard that existed was therefore withdrawn. I do not share the view that the Parole Board is full of naive people. It has an incredibly difficult job and needs all the support and guidance it can get. I have my own disagreements with it, including on the case of David McCauliffe, who has been in prison for 32 years and did not commit murder or rape, although he did commit some totally heinous crimes.

I speak to this amendment because, like other Home Secretaries, I had to deal with Myra Hindley and Ian Brady. When Keith Bennett’s aunt, on behalf of the family, made her appeals to me to see if we could get an identification of where the little boy, Keith, was buried, my heart went out to the family. It was one of those distressing moments that Home Secretaries and now Justice Secretaries have to deal with in cases of murder, particularly where the body has not been identified and there is not therefore the opportunity to grieve properly or to lay the remains to rest. Winnie Johnson, Keith’s mother, died in 2012 without ever knowing where he was. No parent should have to put up with that.

As I have spoken about already, like my predecessors I was able to block the release of the Moors murderers because the power then existed with the Home Secretary. For reasons relating to human rights—it was not to do with the incorporation of the ECHR into the Human Rights Act but with the appeal that went through the judicial system—that power was taken away and, as described, now rests with the Parole Board.

In the circumstances, we are asking the impossible of the Parole Board: to make a judgment on a situation in which somebody has knowingly refused to identify the place in which they put the body of the individual they murdered. For the parents of a child, that is so horrendous as to require a much more rigid approach than we would normally take in giving judges and the Parole Board, quite rightly, the discretion they need to deal with cases. That is why I am in support.

[Lord Garnier (Con)]

My Lords, my noble friend Lord Blencathra’s Amendment 1 and the amendments in the next group to be moved by the noble Baroness, Lady Bull, and spoken to by the noble and learned Lord, Lord Hope of Craighead, are concerned with the prisoner’s state of mind or mental capacity at the time of his application to the Parole Board for release on licence. The amendments may start from different places but end up in more or less the same place. The difference between them is where the assessment of the prisoner’s state of mind begins.

In short, if one agrees with my noble friend Lord Blencathra, it is essentially for the prisoner to persuade two doctors that he is not pulling the wool over the eyes of the Parole Board about not being able to remember where the victim’s remains are. If I correctly anticipate the argument of the noble and learned Lord, Lord Hope, it is for the Parole Board to be satisfied that the prisoner’s state of mind or mental capacity is of such a quality that he is able to disclose, but has not disclosed, their whereabouts.