Illegal Migration Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Wednesday 10th May 2023 Lords Chamber

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

My Lords, few situations are so bad that they cannot get worse, and certainly the current world migration crisis will inevitably get worse. Whether the UNHCR figure for those currently needing resettlement is 100 million or just tens of millions, future floods, fires, famines and human conflicts will inevitably drive it up. Obviously, it is insoluble by any single country, so—and this is the easy point to make—there must be international agreement as to what share of the burden we must all take. Of course, we must make the effort, but let us not pretend that it will succeed. It will not.

Each country, like the UK, must find its own solution, including sensibly—surely few would dispute—deciding on a cap for admissions and the best way for administering it. Plainly, this is by arranging safe and legal routes for the number decided on and, as under the several schemes currently operating—Ukraine, Hong Kong, Syria, Afghanistan, family members and so forth, some directly involving the UNHCR, others not—giving proper consideration in advance of arrival to who should come.

Now that we have absorbed so many Ukrainians and Hong Kongers, surely the time is ripe for a wider new scheme, ideally in co-operation with the UNHCR, to admit more. Indeed, this now seems essential. Unless a generous, fresh resettlement scheme is decided on, there is little hope of persuading people to sign up to these obviously severe measures. Happily, most of this country is still hugely sympathetic to refugees.

How infinitely preferable would this be to the present chaotic situation of having to process those arriving after perilous boat and lorry crossings? As to these, one is entitled to ask: why should they steal a march and gain an advantage over those we will have agreed to take under the capped schemes? Surely it cannot be suggested that we should reduce the number we agree to take lawfully under these schemes to accommodate those coming by boat. Although I do not accept that those arriving from a safe third country, such as France or Belgium, are on that ground alone disqualified from refugee status—indeed, having myself in decades past judicially decided the contrary—there is no reason to ignore the fact that their lives were not in immediate danger when they took to the boats. They had the money to pay the smugglers and, in a number of cases, had already been refused asylum in France or plainly had no legitimate claim to asylum, as with most of the Albanians.

At the core of this Bill, therefore, necessarily lie the twin aims of introducing and enforcing a cap for the numbers we take in future and deterring all others from arriving illegally by ensuring that, with only the narrowest exceptions, they gain absolutely nothing from doing so. The need and basic justification for that is all that I have time for. Plainly, the Bill raises many different and difficult questions—on children, accompanied and unaccompanied; about whether, where and for how long to detain those coming illegally; about Rwanda; about modern slavery; about Article 39 interim orders; about the existing backlog, et cetera—but there is no time to discuss those today. No doubt the Bill can be improved in various ways, but we must recognise that almost every amendment we make to soften it can tend only to weaken its essential objectives: stopping the boats and—the real desire of many, sometimes perhaps masked by an avowed concern about deaths in the channel—limiting the overall numbers admitted.

We really must now harden our hearts and give the Government the opportunity by this Bill finally to confront this most intractable of problems. I hope not to lose too many of my friends by saying so.

Economic Crime and Corporate Transparency Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Wednesday 8th February 2023 Lords Chamber

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

My Lords, I acknowledge that I am no expert in the main areas of law central to this Bill—company law and banking law, for example. I am speaking to indicate my wholehearted support for all the measures designed to strengthen powers to combat corruption and rid this country of the dirty money and—as the noble Baroness, Lady Bowles, just said—the dirty people who have been allowed for far too long to infest it. I will support amendments, however draconian they may seem, which will further pursue these ends.

There are two particular provisions not presently in the Bill that I would dearly like to see included. Both were canvassed in the House of Commons and have been touched on today. The first is the seizure of assets frozen under the Russian sanctions provisions, with a view to applying them to reparations for the ghastly destruction and demolition of so much of Ukraine. Secondly, there is the slapping down of SLAPPs. I will say a word or two on each.

As to the seizing of sanctioned assets, when this matter was originally before the House of Commons it was advanced on the limited basis that it would apply only if and to the extent that sanctioned individuals were to fail in their duty to disclose their UK assets. The amendment proposed that that failure be criminalised to allow seizure. Only yesterday, as has already been mentioned by, I think, the noble Lord, Lord Fox, a wider reaching Private Member’s Bill was presented to the House of Commons by Sir Chris Bryant. It had its First Reading with very impressive and widespread support. I am proud that it was drafted by my former judicial assistant in the Supreme Court, Tetyana Nesterchuk, a Ukrainian woman, who is now in the top commercial chambers, Fountain Court.

That Bill has great merit. It would allow the seizure of already frozen Russian state assets around the world. We are told they are worth some $350 billion, which is roughly the current estimated cost of reparations in Ukraine. The justification as a matter of law for the exception to the usual sovereign immunity protection for such state assets would be Russia’s endless and egregious violations of fundamental human rights, its failure to comply with orders of the International Court of Justice and so forth. I respectfully suggest that, instead of pursuing that as a Private Member’s Bill, as it was put before the House of Commons yesterday, it should be included within the compass of this Bill.

The second provision is SLAPPs. We have already heard a great deal about them. They have recently been thrown into great prominence, above all by a couple of cases: the efforts on behalf of Prigozhin, the leader of the Wagner group of mercenaries, to muzzle Bellingcat and, more recently, the solicitor’s letters quite wrongly headed “without prejudice” written on behalf of Minister Zahawi to attempt to silence Dan Neidle. It could perhaps be argued that the second case would not within the scope of this Bill. However, in respect of trying to silence those investigating economic crime and the like, the Bill would provide a blueprint which would be capable of being applied on a wider basis across the board.

There is a great deal to be said—indeed, a great deal has already been said this evening—about SLAPPs. There was an excellent Thunderer column in the Times on Monday by Margaret Hodge, who has been driving this Bill in the Commons, and the noble Lord, Lord Agnew, who is shortly to speak. If you did not read Thunderer on Monday, you should; it will tell you about the abuse of SLAPPs.

I suggest a three-pronged approach to dealing with this problem. First, an amendment along the lines proposed in the House of Commons to provide a defence, to be heard, hopefully, at an early stage, where the defendant reasonably believes that the disclosure or publication that the claimant is seeking to prevent is in the interests of investigating economic crime.

Secondly, I suggest strengthening the processes—the noble Baroness, Lady Stowell, expatiated on this—of the solicitors’ authorities, the Solicitors Disciplinary Tribunal and the Solicitors Regulation Authority, to try to deal with this, as they are already, but belatedly and thus far not very effectually. The SRA’s powers of fining were recently increased from £2,000 to £25,000 and, as noble Lords have heard, the committee that the noble Baroness, Lady Stowell, chairs recommended a very considerable increase, I think from £25,000 to £25 million. At any rate, those processes should be strengthened.

Thirdly, the Bar, not merely solicitors, should perhaps be a little more astute and fastidious than it is at present in agreeing to act in these cases, before lending itself to the sort of intimidatory letters of which we have heard. My noble friend Lord Cromwell rightly commended the letter from the noble Lord, Lord Pannick, but I would respectfully add this to it: the lawyers acting for these claimants should bear very much in mind the intimidatory nature of the process and the likely acute imbalance between, on the one hand, the wealth of the claimants and the fact that they will be expensively represented, and, on the other hand, the fact that the defendants are likely to be impoverished—or certainly not particularly well heeled—without legal representation and, therefore, understandably anxious about all of this.

Finally, I suggest that the taxi-rank rule, which so many would try to invoke in their favour on these occasions, applies full-force, as it should, in criminal cases where the liberty of the subject is at stake. But it applies a lot less obviously in these sorts of cases, and of course it does not apply to solicitors at all anyway.

My Lords, enough. I hope that the Bill may perhaps be amended to include both of those matters, and, in the meantime, I wish it well.

Public Order Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

My Lords, I remind the House that if this amendment is agreed to I cannot call Amendments 5, 14 or 24 due to pre-emption. As we are on Report, I remind noble Lords that they are allowed to speak only once.

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

My Lords, I support Amendment 1, and no less strongly I oppose Amendment 5 proposed by the Government, my noble and learned friend Lord Hope and others. I never feel comfortable at the opposite end of the spectrum from my noble and learned friend Lord Hope, but I trust that he feels at least as uncomfortable on the other end of the spectrum from me.

Before commenting briefly on the actual language of these rival amendments, let me make what seems to me to be a critical preliminary point, and it is this: the meaning of “serious disruption”—assuming it is to be defined by one of these proposed amendments—is closely related to the concept and discussion and issue of “reasonable excuse” and the rival proposed amendments to that. I recognise that “reasonable excuse” comes under the next group but it is important that it should not be ignored at this stage. As your Lordships will readily understand, the lower the threshold is set for what constitutes “serious disruption”, the less justification there is for narrowing down, let alone excluding, the defence of “reasonable excuse” or for putting the burden of that defence on the accused. It becomes highly relevant as to what is decided in group 1 when we get to group 2. I acknowledge that the converse is true too: the higher the threshold for what constitutes “serious disruption” then the readier the House may be to look at shifting the burden, as the Bill already does, on matters of that sort.

Let me now turn briefly to the proposed definitions. Is “serious disruption” really to mean no more than substantial—in other words, something that is merely more than to a minor degree—interference with someone’s daily activities, as proposed by the Government, such as somebody driving to the shops? “Hindrance”, which is the concept used in the proposed government amendment, is effectively just that: it is really no more than interference and inconvenience. What weight, one asks, is given in the Government’s proposed definition to the word “serious”? Is it to be suggested that this is sufficiently catered to merely by the “hindrance” in the definition having to be

“more than a minor degree”?

I would submit it is surely not.

I do not wish to damage the points made by the noble Lord, Lord Coaker, and I would risk doing so if I were to go on at any great length. Surely the preferable definition is that which is proposed in Amendment 1, “significant harm”, as illustrated in the amendment. It is that significant harm, not merely interference or inconvenience, against which this legislation is directed, and it is certainly only that which could possibly justify most of the regressive, repressive features of this Bill. I therefore support Amendment 1.

[Lord Paddick (LD)]

My Lords, I will first address the opening remarks of the noble Lord, Lord Coaker. As I have told the House before, I have considerable experience of public order policing and my view is that the police have sufficient powers without any of the measures contained in this Bill. In fact, that is the view of many serving police officers who were interviewed by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, some of whom referred to the powers that currently exist as an “armoury” of powers to use in public order policing. Now even the Just Stop Oil protesters say they are no longer going to protest in the way that they have before because too many of them are in prison. If too many of them are in prison, and they are not going to protest in the way that they have before, why do we need yet more powers for the police and more laws?

I have Amendments 3, 4, 12, 13, 22 and 23 in this group, which are nothing to do with the definition of “serious disruption”, so let me deal with these first. These amendments relate to the new offences of locking on, tunnelling and being present in a tunnel. The new offences include activity that is capable of causing serious disruption, even if no disruption whatsoever is caused—another example of giving the police the power to intervene in anticipation that serious disruption may be caused before a protest has even started.

Amendments 3, 12 and 22 restrict the offences to activities that actually cause serious disruption. The new offences are not only committed by those who intend to cause serious disruption, but also extend to those who are reckless as to whether serious disruption may be caused, even if they have no intention of causing serious disruption. Amendments 4, 13 and 23 remove the “reckless” element.

Amendments 5, 14 and 24—and part of Amendments 50 and 51, as we have heard—relate to the definition of “serious disruption”. The Minister will no doubt cite the Commissioner of Police of the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” was clearer. Amendment 1, to which I have added my name—[Interruption.]

--- Later in debate ---

[Lord Anderson of Ipswich (CB)]

My Lords, I am also glad that your Lordships’ House is trying to explain for the benefit of protesters and police what is meant by “serious disruption”, even if we are not finding it very easy.

I will start with the new tunnelling offences in Clauses 3 and 4, which, as I said in Committee in support of the consistent approach of the noble and learned Lord, Lord Hope, are in a very particular category. The key point, recognised in Amendments 14 and 24, is that the disruption liable to be caused by tunnelling is not to the general public but to construction or maintenance works. Delays to the delivery of time-sensitive products, and prolonged disruption of access to a rather specific range of goods and services specified in Amendment 1 of the noble Lord, Lord Coaker, are not really to the point. The one-size-fits-all approach in Amendment 1 is neither designed for nor appropriate to the tunnelling offences. I would add that to require disruption to be “more than minor” in order to constitute the new offences seems quite sufficiently generous to tunnellers who are seeking to disrupt those engaged in lawfully organised works. That is why I put my name to Amendments 14 and 24 and shall support them if they are put to a vote.

The arguments are more finely balanced in relation to Amendment 5. The locking-on offence, as the noble Lord, Lord Coaker, has said, can be constituted by a remarkably wide range of actions. I am wary of a test that is too easy to satisfy, bearing in mind that serious disruption, or the prospect of serious disruption, is the trigger for the no-suspicion stop and search power, and for SDPOs, the whole existence of which is controversial, at least to me. But I take comfort from the fact that, as the noble and learned Lord, Lord Hope, has explained, hindrance to the public needs to be significant before it can meet the test of being more than minor. Indeed, “significant”, not “substantial”, is the very word used in Amendment 1 when it refers not only to “significant harm” but to “significant delay”.

The recent Policy Exchange briefing, to which the noble Lord, Lord Coaker, referred, complains that the “more than minor” test may be interpreted in the light of the Strasbourg case law

“so as to maximise the space for protest”.

I agree that it will have to be interpreted in conformity with the ECHR. Policy Exchange seems dismayed by that; I am rather encouraged by it. When the definition offered by the noble and learned Lord, Lord Hope, is criticised from one side for being too easy to satisfy and from the other for being too difficult to satisfy, perhaps it is not too wide of the mark, even in this more sensitive context.

My main point is that whatever view noble Lords may take of Amendment 5, the case for Amendments 14 and 24 is a strong one. I hope we will have the chance to vote for them.

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

Before my noble friend sits down, would he agree that there is no particular reason why Amendment 1—although plainly it would pre-empt Amendment 5—should pre-empt Amendments 14 and 24?

[Lord Anderson of Ipswich (CB)]

I believe the Deputy Speaker so directed at the outset of this debate—but I will be corrected if I am wrong about that.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, I first thank noble Lords; so too does Cole Porter from the grave, because “how strange the change” would have been from “major” to “just a little bit more than minor”.

This second group deals with the concept of “reasonable excuse”, which noble Lords will remember is present in a number of the new criminal offences in the Bill. As noble Lords have heard, some, including locking on in particular, are very vague and dangerous. I have some amendments, with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that attempt to set straight a reversed burden of proof, inappropriate in criminal law, where the Government have sought to place the burden on the innocent cyclist with the bike lock or the protester, or whoever, to demonstrate that they had a reasonable excuse when, really, the lack of a reasonable excuse should be a component part of the criminal offence and, indeed, something that a police officer considers before arresting someone.

The noble Lord, Lord Paddick, has said eloquently many times in your Lordships’ House that criminal offences need to be fit for purpose not just in a courtroom or even during a charging decision in a police station, but on the ground when an officer is considering who to arrest. Therefore, it is important that the lack of a reasonable excuse be a component, core part of the offence and not something that a hapless bystander or protester has to prove.

The noble Lord, Lord Paddick, will speak to other amendments in this group that he has tabled. I support all of them, whether my name is there or not; it is there in spirit. I would like to be clear about that and, similarly, with attempts to improve these offences and improve the definition of “reasonable excuse”. But, on account of time, I just want to focus on and prioritise the importance of not supporting the government amendments or, should I say, the amendments that Ministers have now signed in the name of the noble and learned Lord, Lord Hope of Craighead.

It seems harsh, to say the least, to single out “protest” from all the potential excuses that may or may not be reasonable in a particular case and a particular set of circumstances. Why single out protest as something that can never be reasonable? That seems to me to be an attempt to take proportionality out of the mind of a decision-maker—not just a court but a police officer on the ground. I think that is a mistake.

The noble and learned Lord, Lord Hope, will no doubt cite very leading authority on circumstances in which proportionality is so clearly part of an offence that there is no need for second guessing at the arrest or prosecution stage. But that will not be the case in relation to some of these offences and, I venture, locking on in particular.

I will not attempt to repeat the eloquence of my noble friend Lord Coaker with the various descriptions of linking arms, but the idea that an offence that can be committed with such trivial activity should not have an element of proportionality put in the mind of a decision-maker is of huge concern to me.

Without further ado, I commend the various amendments that I have described, but also ask noble Lords not to support any attempt to single out protest as the one excuse that is never reasonable. That seems rather unreasonable to me. I beg to move.

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

My Lords, I support the noble Baroness on her amendments and am opposed to Amendment 8 from the Government and the noble and learned Lord, Lord Hope, which seeks to exclude and narrow down very dramatically the scope which, I submit, should be present in this offence for a defence of reasonable excuse.

Why should not a demonstration against measures concerning, for example, climate change as a question of fact and degree for the trial judge be adjudged reasonable, as was the case in DPP v Ziegler, which went to the Supreme Court. It is perfectly true and perfectly right that I should acknowledge this. Indeed, my noble and learned friend Lord Hope drew my attention way back at the end of last year to the latest Supreme Court decision, which he mentioned today with regard to group 1, in the Northern Ireland abortion case. It is a reference from the Attorney-General for Northern Ireland.

Public Order Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

The Joint Committee on Human Rights recommended the removal of Part 2 of the Bill—Clause 19 as well as Clause 20. I understand that, in areas such as this, the Government will often come to Parliament with a so-called concession strategy. If that is the case here, I can only hope that it is an extremely bold one and that the Minister will own up to it as soon as possible. Otherwise, I am sure that many of us will be driven to follow the Joint Committee’s recommendation.

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

My Lords, at this late hour, I will say just a very few words. I start, rather tiresomely, with a pedantic legal point. The explanatory statements for the first three numbered amendments in this group suggest that they relate to the “burden of proof”, but they do no such thing. As I say, somewhat pedantically, I point out that the burden is unquestionably accepted to be on those who wish to pursue this supposed remedy, but these amendments are directed to the standard of proof, which is so critically important here.

As the noble Lord, Lord Skidelsky, said, this is no place for balance of probabilities; it is for the criminal standard of beyond reasonable doubt. That is assuming that anything stays in this part at all. Having just listened with my usual awe and admiration to my noble friend Lord Anderson of Ipswich, and having been conducted down memory lane—TPIMs were a significant part of my past when I was here in a judicial capacity—let me say that his attack on Part 2, on the whole concept of SDPOs, is devastating and unanswerable, and hopefully, at some point, the Government, will recognise that if they have not done so already.

In case the Government have not the good sense and courage to abandon entirely this whole group of provisions, I say that the balance of probability has absolutely no place here at all. Of course, it is the standard by which we determine civil disputes and claims, but, as has already been pointed out, ASBOs—which were given to anti-social people who were being very tiresome with no sort of justification towards their neighbours—were initially put on a balance of probability basis and even that was regarded as unacceptable. But how much more unacceptable is it when, as here, fundamental civil liberties are at issue. To suggest that the touchstone for deciding whether people should be barred from exercising their historic rights should be the balance of probabilities—“Well, perhaps it is just more likely that he did or didn’t do whatever it is”—is a nonsense. Again to revert to legalese: “a fortiori” means if it is a nonsense for one thing it is particularly so for something else; and it is particularly so here, in the circumstances where one contemplates making these draconian orders even when there has been no conviction whatever.

I shall support those who I hope will pursue the stand part provisions here, but, failing that, it is unthinkable that this Bill could go through on a balance of probability basis.

[The Lord Bishop of Chelmsford]

My Lords, I intend to be brief, but I wanted to speak in favour of Amendments 128, 129 and 130, addressing the Bill’s provisions on serious disruption prevention orders, adding my support to the noble Lord, Lord Paddick, and others, and in particular my friend, the right reverend Prelate the Bishop of St Albans. SDPOs are particularly hard-line and risk undermining people’s fundamental rights to protest, and they risk subjecting individuals to intrusive surveillance—methods that, as we have heard, are not typical in this country, and nor do we want them to become typical. The terms used to define who they can apply to are worryingly broad. The definition of “protest-related offence” as

“an offence which is directly related to a protest”

leaves the door far too open to interpretation. It therefore seems appropriate that the burden of proof for imposing SDPOs to the criminal standard should be raised as set out in Amendments 128 to 130.

UK Asylum and Refugee Policy

Lord Brown of Eaton-under-Heywood Excerpts

Friday 9th December 2022 Lords Chamber

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

My Lords, I am sorry to say that we have two atheists in a row—a bit like No. 73 buses. I greatly like the noble Lord, Lord Cashman—I would call him a friend—but I do not like following him in debate. The fact is that he was trained to hold an audience and I have not been.

I start with this story. On my maiden visit to Albania, some 20 years ago, I was driving into Tirana from the airport when I was struck by the number of high-grade fast cars that were overtaking us all the time. There they were: Maseratis, BMWs, Mercedes, Bentleys and Porsches. I pointed them out to my driver and asked about them. He said, “Well, what are you going to notice about them? Just look at their number-plates.” All of them were still bearing the number-plates and other registration marks that they had borne on the streets of the European capital cities from which they had been stolen. Nobody had thought it necessary to change them. The criminal gangs there were so powerful and established that there was no need to hide that criminality.

The fact is that, as its ambassador told a Commons Select Committee two days ago, Albania is an obviously safe country. It is not riven by civil war. It is not suffering acutely from climate change and all the perils that go with it, such as fire, flood, drought and famine. It is just a lawless, ill-governed country. The point is that, if ever one could say that the great rush of people coming here—the young, fit Albanians coming here are economic migrants; at least they should be if we are to have any credibility at all in terms of controlling our borders—should be instantly removed, it is about them. Of course you treat them with respect and compassion and do not discriminate, but let us look at the problem realistically. Above all, the reason I tell that story is this: they are crossing the channel and putting their lives at risk because they are hoping to improve their lives; how much more can one expect—how much more likely to do so—are those who are genuinely fleeing persecution?

That brings me to the point that my noble friend Lord Carlile made. The policies that this Government adopt to deter people from crossing the channel do not work, cannot work and will not work. The most reverend Primate the Archbishop of Canterbury was right to say that people trafficking must be confronted on an international basis; everything possible must be done. One would have hoped for intelligence-led attacks, given the apparent ease with which boats are still sailing from France and Belgium.

In the meantime, recognising that the policies do not work is surely a compelling reason, as so many noble Lords have argued, to relax the absurd 12-month ban on employment. These people should work. There is no point in this ban; it does not deter them, which is the only reason anybody has ever suggested having it in the first place.

On the outsourcing of our responsibilities, I must say that I take a more nuanced, less censorious view than most of your Lordships—certainly the Spiritual Benches—in this House. It is a difficult point, I think. Even if the Rwandan threat to those arriving from the channel crossings does not deter them, it does not follow that we should not be making arrangements such as those proposed here. I have read—I hope and imagine that the Bishops’ Benches have done so too—the three Oxford professorial papers that have been written about all this, circularised under the aegis of Policy Exchange. It is a much more difficult problem than is said; it is tempting and easy just to stand on one’s moral high horse and say, “It’s obviously wrong: the responsibility is ours and we can’t shift it.” Assuming that the policy is legal—of course, we still await the outcome on that—it seems to me that the argument is much deeper and more difficult than has hitherto been recognised.

The other point made in those papers is that it is all very well saying, “We must have safe routes”, but we are not alone in not having safe routes. They do not have safe routes for the general run of aspiring asylum seekers or economic migrants in Canada or America—indeed, in most other countries—because they would be swamped. The most reverend Primate is plainly right that we need a new refugee convention to meet the acute problems that are, as everybody recognises, going to get ever more acute with climate change. Migration is going to be impelled. We think that we have a problem now, but you ain’t seen nothing yet.

Police: Vetting, Misconduct and Misogyny

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 2nd November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

No.

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

Does the Minister feel that the time has come for a royal commission? Every day in this House we have a new fundamental problem—police and crime commissioners, police reporting, police culture or the question of whether there are too many differing police forces. Is it not time for a fundamental look at the relationship between government, the police and any other related body, to try to re-establish the reputation, which we have long gloried in, of our police forces in this country?

[Lord Sharpe of Epsom (Con)]

What I would say—and this is a personal opinion—is that it is very clear that the nature of policing is changing dramatically and has done over the past 20 years. We have just heard about the technological changes that have taken us all by storm over the last decade, and about the vast number of reviews, reports and so on. It seems to me that there is a case to be made to bring many of these strands together and do some new thinking.

Queen’s Speech

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 12th May 2022 Lords Chamber

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

My Lords, many speeches have already touched on the promise—or do I mean threat?—of a new human rights Bill. I proposed to focus on just one topic that I fear may feature in such a Bill: the role of a Parole Board.

Shortly before we prorogued, the Justice Secretary published a document, Root and Branch Review of the Parole System. I confess to having found that a difficult, not to say alarming, document, not least for the IPPs—that unfortunate group of prisoners, many of whom remain detained 10 or 12 years after serving their due punishment, and indeed 10 years after the whole discredited regime was abolished in 2012. One such high-profile IPP prisoner was Tracey Connelly, Baby P’s mother, who in 2009 got such a sentence with a five-year tariff for not preventing that most ghastly and tragic of deaths. I hold no particular brief for the mother, but I do hold a brief for the Parole Board.

In 2013 the mother was released on licence but two years later, in 2015, she was recalled for an unspecified breach of licence conditions. She then failed successive Parole Board reviews until at last, in March of this year, the board decided to release her, subject to stringent licence conditions. At this point Mr Raab, adopting what one can see only as an essentially populist stance, intervened, as I accept was his right. He sought a reconsideration of that release decision by a Parole Board member, a retired judge, arguing—as he had to—that the decision was irrational. Perhaps unsurprisingly, the challenge failed, and the mother, having served in all some 11 years, is now finally to be released on conditions. Is that approach, one wonders, now to change?

During the last 30 years, it has been clearly established that under the Strasbourg convention—the human rights convention—in indeterminate sentence cases it is for the judiciary, not for the Executive, as it always used to be, to determine both the appropriate tariff term for punishment before parole can even be considered, and also the time when the prisoner should finally be released on licence. It is the Parole Board, an independent quasi-judicial body, which has the latter role. Is that now to be changed?

In the root and branch review, Mr Raab said that the Government would introduce “a precautionary principle” into the assessment of risk and a

“Ministerial check on release decisions”—

later called an oversight—in cases involving

“those who have committed the most serious crimes”.

These, the “top-tier cohort”, are those convicted of murder, rape or terrorism and

“Causing or Allowing the death of a child”.

As to these, Mr Raab said that

“the Justice Secretary will have the power to refuse release, subject to judicial challenge, on … clearly prescribed grounds, in the upper tribunal.”—[Official Report, Commons, 30/3/22; col. 831.]

Well, I fear that we are in for an ever-increasing prison population.

When I went on the High Court Bench, almost 40 years ago now—although not as long ago as the noble and learned Lord, Lord Woolf—the average term served by murderers was roughly some 12 years. It is now often more than double that. For the remaining IPP prisoners, unless the grave injustice that they are already suffering is to be increased yet further by some newly introduced “precautionary principle”, they need the Parole Board to exercise some measure of understanding and compassion. Let us hope that the report on IPPs, now awaited from the House of Commons Select Committee on Justice, will see it that way too.

Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

I recognise that we may be only a revising second Chamber, but if not to defend the rule of law, what are we for?

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

My Lords, I rise, I hope for the last time—a hope which will be shared by every Member of this House—to support this amendment. There are not many issues that it is worth going to the stake for, but surely the rule of law is one. I have spent 60 years of my life on it and do not propose to stop here. I suggest that your Lordships support this too.

This Motion as now put fully respects the sovereignty of Parliament, just as the Human Rights Act does. It is the one simple provision that is needed to ensure that questions about the legality of this Bill can be brought before our courts and decided by an independent judge, and it is surely the least contentious way of achieving that. Indeed, it is beyond logical objection. In truth, the only objection raised is that it is unnecessary —surely the weakest objection that one can ever produce. If we never passed a provision which was unnecessary, the statute book would be a good deal lighter and the better for it. But here, it is needed, unless Parliament—your Lordships’ House and the other place—is happy to oust the courts’ jurisdiction in the whole area of what constitutes a right to refugee status, to asylum sanctuary.

It did not appear seemly yesterday to intervene during the short contribution of—if he will allow me to call him this—my noble and learned friend Lord Mackay of Clashfern. My reverence for him is boundless, not least because 30 years ago he had the sagacity to promote me to the Court of Appeal. However, he surely cannot maintain that, because the Attorney-General advises, as she may well have done, that this Bill is refugee convention compliant, that is that and we should just buy into it without thought: that this would be a sufficient basis for putting the whole Bill beyond the purview of the courts. Think about Miller 2; think about the prorogation order. We were told very plainly, and none of us doubts, that Geoffrey Cox, QC and then Attorney-General, had said that this is perfectly lawful. But that did not put it beyond the courts. If ever there was a case for not putting compliance with international law beyond the courts, this surely must be it.

I will make three short points on the speech of the noble Lord, Lord Horam, yesterday, which attracted a rather ungenerous rebuke, although that is by the way. His first point was the general one that this is merely “an enabling Bill” giving the Government “power to do something”. That is surely not so in respect of the important group of clauses we are considering here, which, under the heading “Interpretation of Refugee Convention”, redefine it. Without our amendment, the courts would have no alternative but to apply those provisions, whether or not they are regarded as compatible with the convention. There is nothing by way of this being merely an enabling Bill; it is a declaratory Bill beyond question.

Secondly, the noble Lord, Lord Horam, reminded us of the five-page letter circulated by the then excellent Minister, whose ears must be burning already from the previous debate, and quite rightly, because his loss is a terrible one for us all. The letter set out the Government’s legal arguments for contending that these definition provisions can be viewed as convention-compliant. I have the greatest regard for the noble Lord, Lord Wolfson, and certainly there is not a soul at the Bar who could have made more persuasive arguments to that effect. But they are just that: arguments. They should not therefore, of themselves, necessarily win your Lordships’ support. Included among those arguments were many that had been roundly rejected in the course of this country building up a quarter of a century’s worth of plain, authoritative jurisprudence that decided the questions of what the refugee convention required, which the noble Lord, Lord Wolfson, acknowledged are now being overturned by the Bill.

Thirdly and finally, the noble Lord, Lord Horam, at col. 157 of yesterday’s Hansard, said that he fully agreed with the noble Lord, Lord Pannick, and myself,

“about the 2001 refugee convention”.

He called it the 2001 convention; obviously there is the 1951 convention. He continued:

“I do not want this Government to step outside that in any way. It would be a tragedy if that happened. It should not be allowed to happen; I believe that it will not happen.”—[Official Report, 26/4/22; col. 157.]


But surely he must accept that there needs to be scope, therefore, for somebody to look at it independently once the statute is enacted.

Finally, if we look at the front cover of this Bill, we will see a statement, required by the Human Rights Act, by the Minister—the noble Baroness, Lady Williams —which says, under the heading of the European Convention on Human Rights, that it is her view that

“the provisions of the Nationality and Borders Bill are compatible with the Convention rights”.

She may well indeed have been so advised by the Attorney-General, but surely nobody has ever doubted that that means that it is enough in itself; it is not. What the Act says is that you should try to construe it compatibly and if you cannot you declare it—precisely the mirror image of what is now proposed for this self- same legislation.

I urge your Lordships—not at this stage because it is so late in the day and the ping-pong ball has been returned two or three times already—to consider whether we really should quit on the constitutional issue on this vital rule-of-law question. At this stage, I urge the noble Baroness to divide the House on the issue and let it be supported by all those who want this country to abide by the rule of law.

[Lord Pannick (CB)]

My Lords, I support what was said by the noble and learned Lord. When this matter went back to the House of Commons last night, the Minister there said that the amendment from the noble Baroness, Lady Chakrabarti, was “unnecessary, inappropriate and unconstitutional”. What the Minister failed to recognise, with great respect, is that whether there has been compliance with the refugee convention has been a matter for the courts of this jurisdiction for at least the last 40 years.

Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, in moving Motion B1 as an amendment to Motion B, I also support other amendments.

Extra-parliamentary events since your Lordships’ last consideration make anxious scrutiny today even more important. I refer of course to atrocities in Ukraine and the Maundy Thursday MoU with Rwanda, but also to the unsuccessful Home Office attempts to assert public interest immunity, or secrecy, in the High Court over parts of the subsequently withdrawn little boats push-back policy. Contrary to everything both Houses, voters and desperate refugees were led to believe, the Government always knew that there was no legal basis for repelling a boat containing souls declaring a wish to claim asylum.

The importance of such matters being justiciable in court is therefore clear. From her answers to yesterday’s PNQ, I am glad to say that I do not think the Minister disagrees with that. Nor, to his credit, did the Minister in the other place present any policy difference on that point. He repeatedly asserted ongoing intentions to comply with international law, and specifically to comply with the refugee convention and ECHR together.

I have listened—and indeed pre-empted the constitutional concerns that the Minister just set out—and redrafted to make the refugee convention protection in the Bill no more, but no less, than that already provided for in law by the ECHR, thus making the new Amendment 5D even more respectful of the primacy of the other place and reasonable than its predecessor amendments. I beg to move.

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

My Lords, I rise to support Motion B1. “Nothing matters very much, and very little matters at all.” So said Lord Balfour of Balfour Declaration fame a century ago. But Lord Balfour was not then faced, as your Lordships now are, with a Bill which most—if not all—disinterested lawyers recognise that, first, without the amendment now proposed, would breach international law under the convention and, secondly, at the same time would nevertheless make unchallengeable the question of this legislation’s legality. Noble Lords should note that if the Bill passes without this provision, the legality of these provisions cannot even be raised before a court of law.

That will be the position unless we have the guts or—let me rephrase that—unless we are sufficiently alive to what surely is our constitutional duty as a revising Chamber to insist on the amendment to pass Motion B1. So, pace Lord Balfour, this really does matter very much.

I hope noble Lords will allow me another few words. I read again yesterday the disheartening, positively dispiriting House of Commons debate last week, which summarily rejected our amendments from the last round of ping-pong. The amendment originally in the names of the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, was dealt with even more dismissively and cursorily than the first time round. This time, there was no pretence that the courts could decide whether or not this new Bill will be convention-compliant. Previously, the Commons had been—as I accepted last time round—entirely inadvertently misled into thinking that the courts would have a say on it.

It is acknowledged on all sides that the Bill as it stands would overturn a quarter of a century of established English law as to the proper meaning of the convention. Of course, that is also the view of the UNHCR, which advises that we would be breaking international law by passing this legislation without such an amendment as now proposed. Therefore, it is now recognised that if the amendment fails to pass, the Bill will—the words can be used—foreclose or pre-empt the question as to the legality of these clauses. The clauses, in effect, would therefore operate as ouster clauses.

All the Minister in the other place said last week was:

“The Bill—I insist on this in the strongest terms—is compatible with all of our obligations under international law. Our position has not changed and we do not consider it necessary to put this on the face of this Bill.”—[Official Report, Commons, 20/4/22; col. 239.]


In other words, the Bill that we are now asked to approve without the amendment is simply proclaimed by the Government to be compliant. We are asked to accept the mere self-serving say-so—the assertion—that it is compliant, although, as I have said, it is unsupported, so far as I am aware, by any respected body of opinion charged to look into these things: the Joint Committee on Human Rights, the Bingham Centre, et cetera, and including, as I said, the UNHCR, which is charged specifically under the convention with the superintendence of the proper interpretation and application of the convention.

That is enough. I am sorry if this imperils our hopes of Prorogation this week, but I urge your Lordships to summon up the blood, stiffen the sinews—not, I think, Lord Balfour in that instance—and to continue to reject and challenge this further melancholy attempt to usurp our law.

[Lord Pannick (CB)]

My Lords, I too speak in favour of Motion B1, in the name of the noble Baroness, Lady Chakrabarti. I declare my interest as a practising barrister who sometimes acts in immigration cases.

As the noble and learned Lord has said, the overwhelming view of lawyers and interested, informed persons is that the provisions of the Bill breach this country’s obligations under the convention on refugees, which this country has signed. Ministers have repeatedly asserted to the contrary that they have failed to respond in any way to the reasoning of the critics.

Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti. It is perfectly obvious that the Commons reasons tell us that it agrees that the legislation should be compliant with our international obligations. The Minister has just told us that everything that we do will be compliant with them. I regret that a number of us take the view that these provisions do not so comply. The decision will ultimately be made by a court. If the Commons is right, that is well and good—fine, there would be nothing to argue about—but, if we are right and the view of the Commons is wrong, the judge would be bound by this legislation to disapply the convention and the protocol. No one would be able to say, “Ah, but the Commons reasons say that it is compliant”. The Commons reasons will not be in the legislation.

It is very simple: we respectfully suggest that the Commons should be asked to think again and reflect on the consequences if the advice that it is receiving is wrong and the advice that we are suggesting is right, and to avoid the problem that its own expressed legislative intention—that the legislation should be compliant—will prove to be wrong. It is very simple—all doubt can be avoided by this amendment.

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

My Lords, my focus in this group will be on Motion C1 of the noble Baroness, Lady Chakrabarti, but I crave your Lordships’ indulgence to make one or two introductory remarks.

There could never be a good time for this particular Bill, but we can quite sure that there could hardly be a worse time. Make no mistake: the Bill will affect our standing on the world stage. It seems to me fairly obvious that the Bill was drafted with one particular major objective in mind: to make asylum seeking in the UK as unattractive as one can, to deter and discourage as many prospective refugees from coming here as one can and to refuse such claims as one can.

Of course I recognise that we have special refugee resettlement schemes for a number of substantial groups from around the world, from Syria, Afghanistan, Hong Kong and now—if, alas, somewhat delayed—Ukraine. I also recognise that there is a real and growing problem with a number of refugees—not, of course, those profiting from these schemes—so desperate as to risk their lives in the tragedies of crossing the channel. The draconian measures proposed here will not solve that problem and are not justified—as if aspiring refugees will henceforth say to each other, “Don’t bother coming to the UK. It is very unwelcoming and inhospitable. Just read this Bill”. I do not believe that for all the world and, frankly, I regard it as entirely fanciful. Unless noble Lords believe that this will solve the problem, we should continue to resist at least the most objectionable of the measures being promoted.

As to these, coming to Motion C1, my focus as an ex-judge who used to decide quite a lot of these asylum cases is above all on the legality of these proposals. I truly believe, as do many others, that several of these provisions flagrantly breach our obligations as interpreted by the UNHCR, the body responsible for that under the convention. That is why Motion C1 is all-important. Several later clauses in this part of the Bill purport to define or redefine our obligations under the convention. Of course, as my noble and learned friend Lord Judge says, the Government assert that they do so absolutely fairly and that they give effect to the convention, but that is not the view of a great number of respected bodies besides the UNHCR, such as the Bingham Centre, the Joint Committee on Human Rights and so forth.

On Report, we passed the amendment which Motion C1 is designed to replace and effectively reproduce. Having passed it, we did not go to the lengths of voting down the individual substantive clauses that redefine all the various ingredients of our obligations under the convention. Instead, we inserted that amendment and that is what we must do again. The Government’s objection to it is no more and no less than that it is not necessary, because they are going to comply with the convention anyway. I always think that the weakest grounds for objecting to any clause is that it is not necessary. I respectfully suggest that here it is crucial. I must explain why and noble Lords must forgive me as I do so.

On 28 February, during Report, the Minister then promoting the clause of the Bill, the noble Lord, Lord Wolfson, rightly said of the proposed new clause—the Baroness Chakrabarti clause, if I may call it that—that it

“potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.”

I then intervened before the Minister sat down, because that rang a great red bell with me. I asked whether I rightly understood him as saying by that that, without this amending provision, the courts would be excluded from considering whether the Bill correctly implements the convention obligations. That he confirmed, rightly observing that the courts

“are not there to go behind legislation”.—[Official Report, 28/2/22; col. 609.]

As I suggest, we then wisely passed the amendment introducing the new clause by 218 to 140, a majority of 78.

We come then—I am anxious not to bore the House, but it is necessary to get this point across—to the Commons debate on the Lords amendments on 22 March. That makes depressing reading when you consider how cursorily—and, dare I suggest, superficially —our various amendments, passed after long, painstaking hours, were summarily rejected. Here, one finds that, in response to the suggestions of some Members that it would indeed be a good idea to leave the amendment in, because some of us were saying that the legislation would otherwise be in flagrant breach, the Minister said:

“I … make the crucial point that we have an independent judiciary in this country, and it is open to people to bring points of challenge where they believe that there are grounds for doing so.”


This the Minister described as a

“cornerstone … evolved over centuries”.—[Official Report, Commons, 22/3/22; col. 185.]

I do not for a moment suggest that the Minister was intentionally misleading the House, but the plain fact is that, as the noble Lord, Lord Wolfson, had rightly agreed at Report, Mr Pursglove was quite wrong to suggest that there was no need for this amendment because the courts would anyway deal with the challenge to the legislation based on suggested non-compliance. I repeat: the amendment is vital. The courts otherwise cannot go behind the definitive clauses in the Bill and would have to apply them, compliant or not. Without this clause, the lead argument is pre-empted and foreclosed, as the substantive clauses operate, if I may use the term, as ouster clauses of the courts’ jurisdiction. I urge your Lordships not to accept them.