Extradition (Provisional Arrest) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 4th February 2020 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, extradition has long been an area of our law in which I have been interested and concerned. For some years before my retirement in 2012, I appeared in most of the cases on this sometimes rather arcane topic. It was, therefore, a great pleasure and privilege to have served, alongside the noble Baroness, Lady Hamwee, on the Extradition Law Select Committee of this House chaired by the noble Lord, Lord Inglewood, in 2014-15. Its report on extradition law and practice, the EAW and our relations with the States and around the world is a sound text on which to consider any future development of this topic.

I speak today not because I have any particularly penetrating questions for the Minister, nor to note particular areas of concern. Rather, in the same spirit as the noble Lord, Lord King—whom it is always a privilege to follow—I lend the Bill my full-hearted support. Various questions will, no doubt, arise in today’s debate. My noble and learned friend Lord Judge raised the ever-possible threat that regulation-making powers may be abused. We may need to reconsider aspects of those in Committee; they will then be considered on their merits. Meanwhile, the Government have my backing on a sound, sensible and essentially modest piece of legislation. Despite the Government’s disavowals, I rather hope that the Bill is designed, at least in part and prospect, to meet the threats that would arise if we were to lose the EAW scheme following Brexit.

Echoing what the noble Lord, Lord King, said, in the global and all too lawless world in which we now live, cross-border crime is an ever-growing threat to international peace and prosperity. It is difficult to overstate the importance of extradition in the armoury of the law-abiding majority. I emphasise that effective extradition is an imperative for both states in the process. It is essential for both the country where the criminality occurs and the country to which the perpetrators have escaped to bring the fugitive perpetrators of crime back to their home country to stand trial and, if they are convicted, be punished for their offence. If not, one finds oneself with sanctuaries and safe havens, and those countries to which fugitives flee and in which they feel safe will inevitably attract others to do likewise.

It was those sorts of considerations that led to the framework decision in Europe in 2002, the European arrest warrant and, in turn, the 2003 ruling Act in this country. It is all that which makes the prospective loss of the scheme deeply concerning to so many of us. Plainly, it is therefore sensible to do what we can now in advance to seek to combat the risk that one day we may lose the benefit of that scheme.

This modest Bill will not—and, alas, cannot—fill all the gaps in extradition law to which the loss of the European arrest warrant would give rise, but it can certainly help enormously in at least making this country a less appealing sanctuary for those who have committed crimes and are wanted to be extradited for their trial or to serve a punishment or sentence already imposed abroad. Its initial, immediate effect, as the Minister has explained, is entirely independent of the future fate of the European arrest warrant: to plug a gap which has now existed for some little time in the extradition process with regard to the arrest of those who flee from certain non-EU states. EU states are covered by Part 1 of the 2003 Act; it is the non-EU states that have concerned us hitherto. In the language of the governing 2003 legislation, it is for those fugitive, as explained, from six Part 2 countries: the other four in the Five Eyes agreement—New Zealand, Australia, Canada and America—and Switzerland and Lichtenstein.

As it is now, having initially spotted somebody you need to arrest, you need to obtain in advance a court warrant as a requirement to arrest and extradite them to one of those countries, with the delay and inevitable opportunity to reoffend or, more likely, go to ground to which that gives rise. Under this Bill it will instead be possible, with what I suggest are the ample safeguards put in place, to arrest initially with no court warrant, although of course you have to take that person to court in 24 hours. That then locks in all the safeguards which exist under the legislation.

If we are to lose the European arrest warrant scheme, this Bill cannot improve the prospects of our receiving here those who have fled from criminality in the UK and whom we want back here for trial. For that we will need to look elsewhere. It is my fervent hope that the Government are earnestly in the process of looking elsewhere against the risk that the EAW may all too soon disappear. I support the Bill.

Protestors’ Rights

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 9th April 2019 Lords Chamber

[Baroness Williams of Trafford]

I think I know the case to which the noble Baroness refers, and there has been an appeal of the ruling in that case. I recognise the point that she makes about persons unknown. Because an appeal has been upheld, it will be up to the company involved to relook at the prime reason for the application for the injunction. The point about applications being wide-ranging is certainly something the court may take into consideration.

[Lord Brown of Eaton-under-Heywood (CB)]

Last week, in the INEOS case, the Court of Appeal discharged injunctions against two groups of protesters and remitted to the trial judge for his reconsideration on a limited basis injunctions against two other groups of protesters on grounds, allegedly, of trespass, obstruction of access and so forth. Does not the Minister agree that while that litigation continues to run its course, it would be quite inappropriate for the Government to make any assessment of, to quote the Question,

“interference with the rights of protesters”?

The litigation is deciding what the rights of protesters here may be.

[Baroness Williams of Trafford]

The noble and learned Lord is of course absolutely right—and I wish him a happy birthday.

Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 1st February 2019 Lords Chamber

[The Lord Bishop of Chelmsford]

My Lords, perhaps I may make a very small but important point. Proposed new Clause 1(7) refers to regulations being made for civil partnerships to be converted,

“into marriage and vice versa”.

This would require quite a bit of consultation with the Church of England and, I think, with the Church in Wales.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, without in any way wishing to get involved in the difference between, on the one hand, the noble Lord, Lord Lexden, and the noble Baroness, Lady Deech, and, on the other, the noble Baroness, Lady Barker, it seems inconceivable that proposed new subsection (3) could ever be deployed to cure what the noble Lord would regard as the defect in this legislation. I point the Committee to its last few words, under which this regulation-making power applies only,

“to couples who are not of the same sex”.

If you are to give effect to sibling couples, it would be bizarre to give it to those who are sibling couples of the same sex but not of other sexes. It is perfectly obvious to me that proposed new subsection (3) could not extend to bringing in this altogether very different category of sibling couples.

[Lord Collins of Highbury (Lab)]

I thank the noble and learned Lord for that explanation, which gives me a bit of reassurance. I hope that the Minister will do the same. The fact is that two committee reports have raised serious concerns about the powers that are being extended or given in the Bill. I make it clear from the outset that we support the passing of the Bill and its objectives. We would not want to do anything to hinder it but, on the other hand, we want the Minister to be clear about the precise nature of these powers—about how they will be used and their scope.

The noble and learned Lord has been clear about proposed new subsection (3). I hope that the Minister and the noble Baroness, Lady Hodgson, will be able to respond clearly in relation to my noble friend’s question about proposed new subsection (7). Precisely what is its purpose? I suppose the right reverend Prelate alluded to this, in that he referred to the implications for couples who have been married in church. I suppose that is what he is concerned about. There are obviously many people who have married in church and later divorced, then married again—maybe not in a church, but that has extended even to members of the Royal Family and, potentially, a future head of the Church of England. That is not for me to query. However, this really is important because, in scrutinising legislation, we have to be clear about the sort of precedent we are setting.

My own view, expressed partly by the Delegated Powers Committee, is that when the Supreme Court decision was made the Government should have come in with a Bill themselves. Why are we not conducting primary legislation properly and scrutinising it properly? We have here an omnibus Bill to which, as I say, I do not object; we certainly want to see it passed, without delay. People who want civil partnerships should be able to have them as soon as practicable and we will support that. However, it is incumbent on the Minister to answer these very important questions about scope.

The noble Baroness, Lady Hodgson, referred to the conversion period. I have experienced that myself, not least because I converted my civil partnership into a marriage and I wanted clear assurances about the timeframe for that when the 2013 Bill was going through. I got assurances but it still took a bit longer than I thought it would, so I hope the Minister will tell us precisely what the window of opportunity that has been alluded to is. What is the Government’s view about this period in which people may be able to convert their marriages into civil partnerships? What timeframe are we looking at and how will people know about this? If there is a window of opportunity that will close, it is really important that the Government communicate that effectively. I hope the Minister and the noble Baroness, Lady Hodgson, will be able to respond to those points.

--- Later in debate ---

[Baroness Williams of Trafford]

As I understand it, the Bill is dedicated to this cohort of people only. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, might wish to correct me.

[Lord Brown of Eaton-under-Heywood]

Nothing in the Bill prevents the Government or anybody else hereafter seeking to introduce fresh legislation to avail sibling couples. All I am suggesting is that, under the order-making power here conferred by subsection (3), that power is not granted.

[Lord Collins of Highbury]

It would need secondary legislation.

Counter-Terrorism and Border Security Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Lord Pannick]

My Lords, I, too, support the amendment. I find it shocking that the Home Office should be continuing the proscription of organisations which it recognises do not satisfy the statutory criteria. I have only one suggestion to those who tabled the amendment for their consideration for Report. In new paragraph (d), should it not require the Minister to publish not simply each such decision but the basic reasons for such a decision? That would add a further level of accountability and discipline of the Secretary of State in this context.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support the amendment—looking around, it would be almost eccentric not to. The reasons already given are, I suggest, compelling, but in addition we had a debate in Committee on Clause 1, which is intimately linked with this issue, as the noble Lord, Lord Anderson, made plain at the time. Floating around at the time was Amendment 7 to Clause 1 which provided that it would not be an offence to support the deproscription of an organisation—on the face of it an altogether more compelling argument if the present amendment of the noble Lord, Lord Anderson, is accepted. If one has a defence to Clause 1 supporting deproscription, think what damage—some of us made this point in Committee—that does to the basic objective, which is that you should not be expressing an opinion supporting such an organisation, something which would inevitably be linked with any attempt to have it deproscribed. This is very important also for Clause 1 purposes.

--- Later in debate ---

[Baroness Williams of Trafford]

They could have done. I do not know whether or not it is a consolation, but they could have done.

The point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, does not conflict with Clause 1 because there is no offence to suggest that a group should be deproscribed under Clause 1. Is that what he was referring to?

[Lord Brown of Eaton-under-Heywood]

Unless you are saying that it should be deproscribed because it is actually doing good work and certainly no harm.

[Baroness Williams of Trafford]

The first part of that would not conflict with Clause 1, but the second part of that statement would, as you are then promoting it as an organisation. Perhaps we can talk about that subsequently.

I move on to Northern Ireland, because I want to talk about the amendment in that context. Any change to the current regime must be carefully considered, paying particular regard to the unique historical and current security context and challenges in that part of the United Kingdom. Paramilitary activity has a greater impact in Northern Ireland than in any other part of the UK. Because of this complex environment, proscription remains an essential tool in the wider, strategic approach to tackling the continued and widespread existence and impact of paramilitary groups in Northern Ireland.

Terrorism legislation, including the proscription regime, is of course an excepted matter in Northern Ireland—it is reserved to the UK Government—but the impact of this amendment cannot be divorced from what is happening at the devolved level. Any change to the proscription regime would have a significant impact on wider efforts to tackle paramilitary activity currently being undertaken at a devolved level and supported by the UK Government and multiple agencies and bodies through the Tackling Paramilitarism programme. A decision to change the proscription regime in Northern Ireland could not, and should not, be taken in isolation from these other initiatives and without detailed prior consultation with the devolved Administration and security partners.

Given the current suspension of the Northern Ireland Assembly and Executive, the opportunity to undertake such consultation does not present itself at this time. We simply cannot ignore the operational, policy, resourcing and wider political ramifications of this amendment. These implications arise in relation to the proscription of international terrorist organisations, but are particularly acute in relation to Northern Ireland-related terrorist organisations. I know that this is a sensitive area, and that this House is rightly concerned to ensure that we strike the right balance, both in relation to the proposed new clause and to the other clauses in the Bill which amend proscription offences.

Finally, I suggest that noble Lords proceed with great caution in this area, given the considerations which I have just outlined. The learned position which the noble Lord has set out needs to be balanced against the reality that these are serious and, in some cases, unpleasant terrorist groups. They have been proscribed with good reason and the Government are anxious to ensure that they do not pose a resurgent threat to the public. I hope that, at this stage, the noble Lord will be content to withdraw the amendment.

Counter-Terrorism and Border Security Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Viscount Hailsham]

That is true but there are many aspects of the law where it is not true. I look nervously at my noble friend Lord Faulks, but I think privileged communications to journalists are not covered by the definition of confidential and privileged information in the ordinary and criminal courts. I would therefore be very chary about extending the privilege to journalists qua journalists. There is also a serious point: who is a journalist? When does a career become spent and when is it still operational? There are quite a few problems along that line. I will bring my remarks to a conclusion so that the noble Baroness can respond to the points made by the noble Lords, Lord Anderson, Lord Carlile and many others.

[Lord Brown of Eaton-under-Heywood (CB)]

Just before the Minister responds, can I add a word, I hope not too tiresomely, on Amendment 5? If you suggest that it would be a good idea to deproscribe a particular organisation, can you do so only on the basis that it is better to deal with it in the open, as suggested by the noble Lord, Lord Carlile, and indeed, by the noble Earl, Lord Attlee, so as to discourage recruitment, or can you say that it is because you regard the organisation’s aims as essentially innocuous or perhaps even beneficial overall? If the latter, surely that would risk destroying much of the effect of Clause 1 as a whole. You would simply couple your remarks with a suggestion for deproscription. If the former, surely the amendment, if it is to be incorporated in this legislation, had better build in the need to make it plain that at the same time as promoting deproscription, you continue to condemn the aims of the organisation.

[Lord Harris of Haringey (Lab)]

My Lords, I apologise for not having spoken on Second Reading, but I came to this debate on the basis that I had one point to make. Having heard such a range of views, I am afraid that I now have three or four.

To keep the flow going, I shall pick up on Amendment 5 and the argument that there should be an exemption for organisations that cease to be proscribed. I start from the same position as the noble Viscount, Lord Hailsham, that by and large it is better not to proscribe organisations, but to have them out in the open. When they are proscribed, they tend to reformulate and call themselves something else, and it all becomes a bit silly.

Amendment 5 could create a rather large hole through which those who wish to circumvent the purpose of these clauses would get through. People could say, “I am not arguing for what they want; I am simply saying that it is wrong for them to be proscribed because they are rather excellent people whose objectives are entirely understandable, which any sensible person in that part of the world would think is a good thing”. We could run the risk of providing a defence for people and allowing them to do things that we are trying to prevent them doing.

Moving on to Amendment 6, the question of who is a journalist is wider than has already been suggested. We are all citizen journalists now. We all have the option of putting stuff out on the web; we can blog and tweet; we can put things on Facebook, YouTube or whatever we want. Increasingly, people now define themselves as citizen journalists. Unless we go back to something very old-fashioned such as saying that journalism is a controlled profession and you are a journalist only if you have a card issued by the National Union of Journalists, which is probably unlikely, then anyone can say, “I’m doing this for the purposes of journalism, or to further journalism”—whatever it might be—“because I am a journalist; I am a citizen journalist and I am putting this material forward”. While I do not want to undermine what we would all regard as legitimate—we are all rooted in the past and think of journalism as being about newspapers and producing seriously researched articles and investigations—the word no longer means what it used to mean. Therefore, if we are going to say that there should be some sort of exemption for journalism, we need to define it much more closely than it is in Amendment 6.

I pity the Minister who has to pull all these threads together. I understand the concerns about freedom of speech; we all share them, in principle. This is all about proportionality: balancing that freedom against the harm that may be being done. It is apparent that, as the law stands, it has been impossible to pursue people who are palpably causing a great deal of damage. That is why the Government are seeking to amend it. I assume that they have not gone down the route of saying that someone must have the “intent” to do this because proving intent is rather difficult. Under those circumstances, if we put proving intent in we will be back where we started and not able to pursue some of the individuals who do so much harm.

This is why I rather like the phraseology of my noble friend Lord Rosser, who talked about a “pattern of behaviour”. This exempts people who just express an opinion on one occasion and suddenly find they have fallen foul of the law. However, somebody who has a systematic approach to pushing people in a certain direction would fall foul of it. For that reason, I hope that the Government will carefully consider Amendment 1, or something akin to it, which indicates that what should be prosecuted is not a simple isolated act—a mere expression of an idle opinion—but somebody pursuing a course of action which is designed to have this effect.

Police and Crime Commissioners

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Thursday 28th June 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, unlike many who have contributed to this debate, I confess that I have no particular experience or expertise with regard to PCCs, chief constables or Mr Heath, but I want to take part, first because I am a great admirer of my noble friend Lord Armstrong. I want to support him in this debate and, like others, pay tribute to him for securing it and for so cogently and compellingly opening it. Secondly, I noticed that there were no other retired judges down to speak, so I wanted to add my name to the list of those who, absolutely rightly, have deeply regretted the failure—still to this day—to instigate an inquiry into Operation Conifer, which has so cruelly left a distinguished, long-deceased Prime Minister with his reputation and memory stained, and which plainly requires a full investigation now to vindicate the position.

This matter was last considered by the House on 1 March in a Question raised by the noble Lord, Lord Sherbourne. I confess to complete puzzlement as to where exactly the Minister’s response leaves the final responsibility for the continuing failure to hold this obviously desirable inquiry. The Minister, who, like others, I greatly admire, referred the House that day to a policing protocol issued by the Secretary of State under the 2011 Act that undoubtedly enables a PCC to commission an independent review into a police investigation to help the PCC hold a chief constable to account. She also referred to the police and crime panel, sometimes referred to as the police and crime commissioners. They, as I understand it, are elected councillors and independents who replaced the old police authorities. Their function, as I understand it, is to scrutinise a PCC’s actions and decisions. Have their powers been invoked in this context?

A further body mentioned on that occasion, not by the Minister, was the Chief Inspector of Constabulary—the noble Lord, Lord Blair, has returned to that today—and as I understand it he might well have powers and responsibilities in this field. Under the Police Reform Act 2002 the director-general of the Independent Office for Police Conduct, which, I understand, replaces the old Police Complaints Authority, has a statutory duty to ensure that suitable arrangements are present to handle complaints against the police.

In short, one of the most troubling aspects of this case is that, despite the Home Office’s recognition of the compelling need for a public inquiry into this case and perhaps into other high-profile cases that raise closely related issues, no one seems able to nail the question as to where lies the primary responsibility for setting it up and still less how to enforce compliance with that responsibility. I for one shall not feel comfortable about the PCC’s role in the new overall policing landscape until this question is satisfactorily resolved.

International Development (Official Development Assistance Target) Bill

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Friday 27th February 2015 Lords Chamber

In particular, when we discussed what might happen in the meeting, we did two things. We speculated on whether there would be two Treasury officials, and we knew that if there were, we had better be even better prepared than we had decided to be before. The second thing we did was to say to our minute taker, “Will you please say nothing and listen very carefully? If the Treasury man writes a note, make a little mark so we know at what point he made that note, because afterwards we will consider what he or she had in their mind at the time”. That monitoring and discipline was absolutely essential to the proper conduct of our affairs. I cannot understand why anybody would think that the Treasury should not be in at the beginning of all these processes as well as throughout them and at the end.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I speak from a position of deep ignorance, having had no relationship with the aid programme nor in any shape or form with the Treasury—except that I used to think myself a rather overgenerous contributor to it during my years at the Bar. I support this amendment, but I see the force of the point made by the noble Lord, Lord Davies of Stamford, about the messages sent. I appreciate of course that one cannot amend the amendment today, but there is an opportunity between today and Third Reading; one could, after the proposed addition set out in Amendment 1, include in parentheses something to the following effect, which would accommodate the noble Lord’s point. After saying:

“Subject to the assent of the Treasury following each Spending Round”,

one could add, in parentheses: “which shall not be withheld, save only to promote the most effective use of the committed fund”. That, with respect, would indicate plainly in the statute that the only point about this amendment is to have the scrutiny to ensure the efficient, effective use of this fund, so you do not escape—as unamended you would escape—all discipline at all in the use of this money.

[Lord Forsyth of Drumlean (Con)]

My Lords, I will make a brief point in response to the point that was made, and the point made by the noble Lord, Lord Davies. It would appear that some noble Lords are under a misapprehension about what the Bill does. All it does is require the Secretary of State to have a target of 0.7%, and where under Clause 2 he or she has established that target, they have to make a statement to Parliament if they have not met the target. Clause 2(3) says that a statement made,

“must explain why the 0.7% target has not been met in the report year and, if relevant, refer to the effect of one or more of the following”,

which are, in paragraphs (a) to (c),

“economic circumstances and, in particular, any substantial change in gross national income … fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing … circumstances arising outside the United Kingdom”.

The noble Lord, Lord Davies, thinks that that is a flag, but it is more of a dish-cloth. All it does is to say, “This target is desirable, but if it’s not met, you’ve got to give a statement to Parliament, and these are the range of reasons”.

Circumstances outside the United Kingdom could be anything whatever. There could be a crisis in euroland or a whole range of things such as difficulties in Ukraine. The Bill does not impose an absolute statutory duty to spend 0.7%, as has been suggested by some noble Lords; it simply imposes a duty to tell Parliament if this has not been done and to give a reason for that. What it does do, however, is to mess up the procedures by which our country has accountability for public expenditure and to confuse the fiscal year with the financial year, and it does so because it is a flag-waving Bill in terms of meeting an international target. Those of us in this House who are seriously concerned about getting money to poor people in poor countries, and ensuring that that money is spent wisely, ought to support this amendment. Far from weakening the Bill, it would strengthen it as it would bring the Treasury into the process from day one and avoid the situation whereby the Secretary of State can say, “I didn’t meet the target because the economy wasn’t right and the Treasury wasn’t too happy”. This amendment would strengthen the Bill and preserve the integrity of our financial control.