Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

So the debate so far has not clarified my mind, but I think that the simplistic solutions that have been offered by some of the speakers moving these amendments need to be challenged. I congratulate my noble friend Lord Horam on raising the big dilemma that faces us all. We do not want the equivalent of Alternative für Deutschland and the extreme-right parties of other countries being strengthened and provoked if we do not get this right.

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

My Lords, I speak solely as a lawyer. I did not speak at Second Reading; I would have needed to apologise for and explain that a few years ago. Consistently, we have been permitted to engage at a later stage, and that is no longer so.

I confess that I have been working hard to try to catch up with the legal appreciation of the effect of this Bill. I wish to respond to the noble Lords, Lord Kerr and Lord Horam, as a lawyer and in terms of the consistency of the Bill with our international obligations under the refugee convention. Under Article 35, we and our courts are required to have regard to what UNHCR says on the proper interpretation of the Bill in applying it in this country.

Although my views on the Bill overall are still not fully formed, as a lawyer I have come to the clear conclusion that Clause 29 and the clauses that follow Article 31 most directly for present purposes are simply impossible to reconcile with the clear jurisprudence of our courts of the most authoritative nature. For that, reason, I take essentially the same root-and-branch objection to Clause 11 and say to the noble Lord, Lord Horam, that I wonder whether this large proportion of people who, understandably, object to the problems this country has with asylum—and who would wish to exclude, so far as possible, those who are trying to gain refugee status here—would add, “And we don’t care a fig if what we are doing to give effect to that policy flatly contradicts our international law obligations under the refugee convention”.

Intrinsically, the group of clauses to which I refer, including Clauses 31 and 36, bear very closely on Clause 11, which is of course the subject of this group of amendments. The centre of the Bill’s approach, and that of Clause 11, is to try to create a particularly disadvantaged subcategory of asylum seekers, essentially on the footing that they fall outside the protection of Article 31 of the convention. The fact is that Article 31 is addressed both in Clause 31 and, as it happens, in closely similar terms, in Section 31 of the Immigration and Asylum Act 1999. So there it is: we are talking about Article 31 of the convention, Clause 31 of the Bill and Section 31 of the preceding legislation, the 1999 Act.

Clause 36, more particularly, seeks to override well-established case law most directly. All this is explained in the series of authoritative legal opinions that have been addressed, certainly to me and probably to other lawyers in the House, by the Bingham Centre, the UNHCR and Amnesty—and by the Joint Committee on Human Rights, which is a very authoritative body of both Houses.

The Bill now seeks to overcome the effect of a divisional court case known as Adimi. I confess that, way back in the last century, I gave the leading judgment in that case but, much more importantly, it was approved explicitly on the critical questions—of coming here without delay and so forth—by the Appellate Committee of your Lordships’ House, presided over by the late and much-lamented Lord Bingham of Cornhill, in a case called Asfaw. The reference is 2008 1 AC 1061. It is a compelling leading judgment and indicates that the position, authoritatively decided in accordance with UNHCR advice and all the earlier indicia, is not compatible with what Clause 11, by reference to Clauses 31 and 36, seeks to do: to create this category B, to be regarded as illegal entrants to this country. It is on that basis, and not the narrower although well understandable objections to Clause 11 from other quarters, that I shall particularly resist the inclusion of Clause 11 in the Bill.

[The Lord Bishop of Durham]

My Lords, in rising to support the proposal that Clause 11 do not stand part, to which I have added my name, I declare my interest in relation to both RAMP and Reset, as set out in the register. Along with colleagues on these Benches, I looked carefully at the possibility of making amendments to Clause 11 along the lines of those proposed, and reached the conclusion that the only thing we could fully support was the removal of the clause.

The proposal to separate refugees into two groups depending on how they arrived in the country, and whether it was their first country of arrival, are inimical to the whole basis on which the refugee convention is built. It is a betrayal of the letter and spirit of it. The idea that asylum must be claimed in the first country of arrival has no basis in international law; this is the view of the UNHCR and of the legal community. If imposed, it would place an unsustainable burden on a small number of nations, most of which are already under immense strain. The whole purpose of an internationally agreed convention is to recognise that the responsibility for the care and support of refugees needs to be carried by the whole global community. We recognise this as a nation by setting up and running resettlement schemes, working with the international community. So to try and declare this for those who claim asylum on arrival here, even if they have passed through other nations, does not logically fit with our recognition of the need for global collaboration and a global sharing of the demands.

I say to the noble and learned Lord, Lord Clarke, that the danger is that we go into a wider refugee debate rather than debating the clause. The vast bulk of the 80 million refugees have no desire to go anywhere other than back into their own country. That is where most of them wish to go; I have seen that and talked to them first-hand.

However, let us for a few minutes work with the idea of claiming asylum only in the first nation of arrival, and see how this would work with the proposals in Clause 11 for our nation. We are an island nation; therefore, no one could ever make a first arrival here by land—no one in group 1. We are an island nation, so arrival by sea is a clear option, but none of us wants to see arrivals by sea in unsafe boats. So the safe ways must be via ferries, or cargo or passenger ships coming from longer distances away. The likelihood that such journeys could be undertaken in a way that is deemed legal under the Bill is very slim.

Those fleeing persecution, domestic violence, war and the impact of climate change may well have to do so without all the relevant paperwork, and certainly with no valid visa. They might just secure a paid-for passage without all this but it is highly unlikely. It is more likely that they will find themselves having to stow away in a van, lorry or container, or somewhere on the boat, so they will arrive having travelled illegally—hence they go into group 2. The number who would travel in complete fulfilment of the Bill in a legal manner would be minimal—almost no one in group 1.

We are an island nation, so arrival by air is the other clear option. Stowing away on an aeroplane is decidedly harder than on a ship but might just be possible. However, I think we all understand it is illegal, so such arrivals would go straight into group 2. Perhaps someone somehow manages to purchase a ticket and travel with their own passport but with no visa. As it happens, I was nearly refused entry to a plane when returning home from Portugal last autumn because of an issue over my Covid vaccine passport, so how one would succeed without a valid visa is an interesting question. It might just happen; however, on arrival, there is no visa so they could easily be deemed an illegal arrival, therefore in group 2.

Perhaps they have a visa as a student, so entry happens legally. But this student is not simply studying; they are fleeing because they are gay and know that they will be persecuted in their home nation if they come out. That will be made worse for them because they also come from a minority tribe who already feel put down, so on arrival they claim asylum on the basis of their sexuality and the likelihood of persecution. However, this was not the purpose of their visa. This is not theory: it is the story of Azmat, who I, along with several other Peers, met online last week. Such people do not qualify for group 1 but go into group 2.

The UK resettlement scheme and the Afghan citizens resettlement scheme are not open to all the nationalities most commonly accepted as refugees by the UK Government. Vulnerable people requiring protection will therefore become group 2 refugees. People cannot jump a queue where there is simply no queue to join.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, it is a great privilege to follow the noble Lord, Lord Walney. Noble Lords will recall—if they were present in Committee—that, in supporting the Bill, I did none the less raise some mild questions about noise. It is a shame the noble Lord, Lord Hogan-Howe, is not here, because I thought he was very compelling in the arguments he made, as a former police chief, as to why these measures around noise were manageable and relevant.

I will listen very closely to what my noble friend the Minister says on this, but I feel pleased that the Government have come forward with the clarifications that they have. I would add—to build on what the noble Lord, Lord Walney, said—that when I think about the Bill and the reason why I support the measures within it in principle, I start from the summer of 2019. I did mention this before, at an earlier stage of the passage of this Bill. This was a point at which there were new forms of protest and demonstration through the summer, and a lot of people who, unlike noble Lords, do not go on protests, were rather concerned about the way that things such as blocking Waterloo Bridge and bringing Oxford Circus to a complete standstill—and this went on for days—were supported by Members of Parliament and very senior high-profile people.

That kind of behaviour was so alien to the way in which people in this country normally protest. It was very alarming to people and we have to remember that we cannot argue in favour of that aspect of our democracy in terms of protest, without also reminding ourselves that some people who were alarmed at the support for that kind of behaviour also looked at Parliament in real concern when we did not respect democracy in the years before that in the way that we ignored the change that some people wanted to make by using the ballot box. I do think we have to see this in the bigger picture.

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

My Lords, we are at Report stage—although it would be very easy to misrecognise it as Second Reading. I have been supporting the Government this afternoon—but not at this stage and probably not for most of the rest of the debate.

The fact is that this amendment—and most that follow—to my mind, we must support. I entirely accept that it is nonsensical to suggest that by Clause 56, and most of those that follow, the Government is intent on repression. They are not trying consciously to suppress our hallowed rights of protest, of demonstration and of assembly. That is not the position. But I suggest strongly that that is the public perception—that is what the public believe—and understandably so, because it is such an overreaction to anything that has happened.

I too excoriate Insulate Britain: they behaved outrageously and undemocratically, so flatly contrary to the rule of law and wider interests, that we must amend to ensure that they are arrestable and imprisonable without going through the process of contempt of court proceedings in future. But these provisions, as the noble Lord, Lord Cormack, said, simply lack all common sense, they lack all balance and measure, and they are counterproductive.

The noble Baroness behind me suggested that we all, and the wider public, protest things such as stopping the Tube trains, but I would remind your Lordships—I think I have just read—that those who committed that apparent offence were resoundingly acquitted. The fact is that if we pass laws such as this law, that is going to be the reaction: the Government are going to be regarded as tyrants and the public will not play.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I tried to say that I think we do not want to muddle up too many things. The Bill might have been brought forward in order to deal with the popular revulsion at things such as the M25 sit-ins or getting on top of the Tube, and we have heard that from a number of noble Lords.

The point about this set of proposals, though, and things such as the triggering noise, is that they do not solve that problem. That is what drives me mad. The second lot of amendments—which were brought in anti-democratically in terms of process—at least looked like they referred to that set of egregious demonstrations. So that is that bit.

One thing that has been said which I think is very important is that there is a fractious atmosphere in society, which the noble Baroness, Lady Stowell, talked about last time we had this discussion, which is that people feel very strongly about some of the issues of the day. They are not prepared to always say that they support the right of demonstration; they think that something else is going on.

But one thing they definitely think is that the police are biased. They think that the police are erratic. Some people will say, “Well, the police won’t intervene because they’re all too busy taking the knee or driving around in rainbow-coloured vans”. Other people will say, “The police are acting like far-right stormtroopers protecting different types of people.” There is a public debate going on about the role of the police.

So, my objection to these amendment is that not only does it concentrate on noise, which nobody has ever complained about—who has brought that up?—but it puts the police in an even more invidious position. I do want to know how the Government will deal with that. The SOAS policy briefing, which I thought summed it up well, said that the Bill

“compels the police to make decisions about whether protests can go ahead, and therefore forces the police to become a visible and controversial actor in ordinary political debate.”

I think that this will make the position of the police much worse, so even if you are not on the side of the right to protest with no ifs and no buts—as I am—from the Government’s point of view and the Home Secretary’s point of view, who say they are doing it to help the police, they are actually putting the police in a position where they are wandering around assessing noise levels and therefore choosing which demos go ahead, which everybody will think is to do with politics and not procedure. So there seem to me to be some unintended consequences of that approach.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

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

My Lords, I too support the amendment of the noble Lord, Lord Pannick. Strongly though I support it and absurd though I too think it is to allow for some possibility of a jury trial with the jury sitting otherwise than in the actual courtroom, I had no intention of speaking tonight until I learned that my noble and learned friend Lord Judge could not. As I seem to be the last judge standing this evening and feel so strongly about this, it seems that I should say a word. But I urge all of your Lordships to recognise that if my noble and learned friend had been speaking, he would have said the little I propose to say so much more tellingly and convincingly that the House really ought to add enormous weight to it.

All I say is that the whole value of a jury, sacrosanct in our law of course, is that they are there and part of the atmosphere. They watch the whole thing unfolding, see the witnesses and sense the entire development of the arguments as they emerge. My noble friend Lord Carlile made a number of these points, as the noble Lord, Lord Macdonald, has just done. The whole aura of the process and the fact that the jury recognise in the courtroom that they are, for the first time, having to apply themselves to this critical question—is this man or woman guilty or not guilty?—is lost and dissipated if they are not there. I urge your Lordships not to provide for this suggested possibility, for who knows in what circumstances it would be? They can be only circumstances that do not justify having a separate jury.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we agree with the noble Lord, Lord Ponsonby, on the amendments he moved or spoke to on proceedings involving children and health screening, and with the noble Lord, Lord Carlile. We support those amendments, but I will speak to Amendment 97CA from the noble Lord, Lord Pannick, on the use of live links in jury trials, to which I have put my name.

This amendment raises two important questions about the nature of juries and of jury trial. First, how important is it to the trial process that juries see and hear witnesses give their evidence live? Secondly, how important is it to the trial process that the relationship and balance between judge and jury is live rather than remote? On the first issue, the noble Lord, Lord Macdonald, and the noble and learned Lord, Lord Brown, made the point that jury trials depend, more than anything else, upon the ability of jurors to weigh up the evidence of witnesses. They have to assess two things: veracity, or whether the witness is trying to tell the truth, and accuracy, or whether he or she has got it right.

As others, including the noble Lords, Lord Pannick and Lord Carlile, have said, after nearly two years of the pandemic we have all become completely familiar with the process of remote discussion and meetings. None of us, I feel, would now argue that remoteness makes no difference. In this vital area of our national life, as the noble Baroness, Lady Bennett of Manor Castle, pointed out, we entrust decisions about the guilt or innocence of those charged with serious crimes to juries of 12 who listen to and weigh up the evidence of witnesses, and make decisions about truth or falsehood, reliability or inaccuracy, honesty or dishonesty, and intent, accident or misadventure. Those jurors will certainly consider objective evidence that has the same effect when seen or heard remotely as it has when seen or heard directly. But much of the evidence they will hear, and usually the most critical evidence in jury trial cases, has to be subjectively judged, as the noble Lord, Lord Macdonald, said. That is done by references to the witnesses’ demeanour, body language, response to cross-examination and emotional responses.

These are matters on which juries might initially and quite legitimately disagree. Their assessment—the different assessments of all 12 of them—will be the subject of detailed discussion during their deliberations and depend upon impressions. We would be undermining our jury system by depriving jurors of the opportunity, in the case that they decide, to share their experiences of the witnesses and the experiences that they have had live. I do not believe that undermining the jury trial in this way can possibly be justified.

On the second point about the presence of the judge, counsel and jury in the same place, the role of the judge and jury and the relationship between them is a delicate one. I agree with the noble Lord, Lord Pannick, that the judge’s position is to ensure that trials are conducted in a responsible and serious way. I also think there is considerable importance in that relationship that the independence of juries is maintained. A stock sentence that judges quite properly use when summing up is when they tell the jury, “It is a matter for you, members of the jury,” and it is.

However, for juries to make the decisions they are charged with making, they must not feel to be, seem to be or, still less, actually be at a disadvantage compared to the judge who has seen and heard and assessed the witnesses live. When the judge recounts a particular piece of evidence in summing up, juries must not be cowed or persuaded into accepting what they may perceive to be the judge’s view of the evidence. They must be able to say to each other: “He or she may have said that, but I did not believe that witness—did you see how scared they looked?” That is what jury independence means. Jury independence is fundamental to our system and why it is so important. For that reason, I completely support the amendment from the noble Lord, Lord Pannick.

Sarah Everard: Home Office Inquiry

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 9th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I could not agree more with the noble Baroness that the truth must come out—both at pace and conducted in a way that would satisfy the family. As I have said, if the non-statutory inquiry cannot meet its commitments, it can be converted to a statutory inquiry.

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

The Minister must be aware of the deep public concern following the Sarah Everard case. Does she not agree that the fiercely independent Macpherson inquiry and report into the tragic death of Stephen Lawrence went a long way towards restoring the trust of the black—and wider—community in policing? Can the Minister suggest any reason why a similar, judge-led inquiry with similar powers, now under the 2005 Act rather than the Police Act 1996, would not be the obvious best way of examining predatory police culture in certain quarters and restoring the trust of young women in this country in our police force, which is surely a vital consideration today?

[Baroness Williams of Trafford (Con)]

I think the House agrees that trust and confidence in the police must be restored. We wish this inquiry to proceed at pace and to get to the nub of the various issues that it will look into. If the Home Secretary is not satisfied that a non-statutory inquiry is fulfilling those commitments, she can convert it to a statutory inquiry, but I must say that I think the whole House seeks the same end from this inquiry.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

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

My Lords, I have no time today to talk about what is in this Bill, only to talk about what is not but plainly should be: IPP prisoners, a subject already touched on by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Blunkett. This Bill represents a further step toward sentence inflation and must inevitably lead to a greater prison population and more overcrowding. Remedying the IPP regime would not only help cure a great and growing injustice in our system, it would also make some contribution—if perhaps only a modest one—towards reducing, instead of endlessly increasing, the prison population.

The very first sentence of the impact assessment for this Bill, under the heading,

“What is the problem under consideration?”,


speaks of too many offenders

“not serving a sentence that reflects the severity of their crime”.

Tell that to the remaining 1,722 IPP prisoners never yet released from their sentences—sentences which, by definition, were imposed before 2012, when the whole discredited IPP regime was abolished by LASPO, although, alas, only prospectively, not retrospectively.

Of those 1,722 prisoners—these figures come from June of this year—96% have passed their tariff expiry date and 555 have served over 10 years beyond their tariff term, which is the term specified, in the words of the impact assessment, to reflect

“the severity of their crime.”

Astonishingly, of those, 207 have actually got a tariff term of less than two years. Are these not appalling figures?  Indeed, many of them have served well beyond the statutory maximum determinate sentence for their offences.  Frankly, this is a system of preventive detention which some know effectively as internment.

That is not the end of the problem because in addition there are now in prison a further 1,332 IPP prisoners recalled under the licence provisions; therefore, making more than 3,000 IPP prisoners still incarcerated in our prisons. Recalls are a growing problem. The number is increasing year on year. The great majority are not for further offending but rather for often comparatively minor non-compliance with release conditions, such as not giving their correct or up-to-date address—and they do not always find that easy—or for mental health reasons.

All these IPP prisoners, whether never yet released or recalled, have to discharge that most difficult of burdens to prove for release that they would then be safe. In the meantime, they and their families live in a Kafkaesque world of uncertainty, hopelessness and despair. It is small wonder that there have been many suicides among this population: twice as many IPPs even than ordinary life sentence prisoners. It is self-harm. It is also small wonder that Justice Ministers past—Tories such as the noble and learned Lord, Lord Clarke of Nottingham, and Michael Gove—have recognised the manifest injustice of all this and called for reform. Indeed, on 31 July I hope at least some noble Lords read Matthew Parris, who devoted his whole column to urging the Government to have the political will—as he put it, the guts—finally to deal with the gross injustices that these prisoners continue to suffer. We cannot afford to miss this opportunity at long last to do something for this cohort.

Immigration Control (Gross Human Rights Abuses) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

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

My Lords, I, too, strongly support the Bill and warmly commend the noble Baroness, Lady Kennedy of The Shaws, on her commitment to this cause and her good fortune in the Private Member’s Bill ballot. As she has explained, essentially it seeks to complete what must surely be accepted by all as a compellingly necessary legislative response to the particular form of gross abuse of human rights to which it is directed.

We addressed part of that response—the monetary part, as has been explained—in the Criminal Finances Act earlier this year, which provides, by way of amendment to the Proceeds of Crime Act 2002, for the civil recovery of the proceeds of unlawful conduct. That unlawful conduct is now defined, pursuant to the 2017 Act, to include, under the title “gross human rights abuses or violation”, the appalling ill treatment of, in shorthand, whistleblowers and the like. Under the 2002 Act, as now amended, the financial gain from this form of gross human rights abuse can be frozen by establishing a “good arguable case” and recovered by legal action if the case is then established on the balance of probabilities.

Having supported that provision in my speech at Second Reading of the 2017 Bill, when I simply mentioned the name Magnitsky, I received by post a copy of Bill Browder’s book, Red Notice. Generally, one never gets around to reading such unsolicited books, but I was tempted to dip into it by the endorsements on the cover. Tom Stoppard called it,

“a shocking true-life thriller”,

while Lee Child said:

“Reads like a classic thriller … but it’s all true, and it’s a story that needs to be told”.


And so indeed it is. Having picked it up, I could not put it down and I finished it with a deep sense of outrage. Subsequently, I lent it to the noble Lord, Lord Butler of Brockwell, who described it as the best thriller he had ever read, and now I have it on loan to the noble Baroness, Lady Chakrabarti.

The Criminal Finances Act earlier this year dealt only with the material proceeds of that sort of appalling misconduct. As has been explained, United States legislation, which Mr Browder secured previously, prohibited—and surely rightly—the entry of certain individuals to the United States. It is essentially to achieve that that the Bill today is directed, and I applaud it, but there are two questions that are worth raising.

First, Clause 1(1) of the Bill provides for the banning on entry, and so forth, in respect of a third-country national,

“who is known to be, or to have been, involved in”,

the dreadful conduct in question. I would suggest that “known” is a pretty high test. What standard of proof is intended to apply? In what state of mind must the Secretary of State or immigration officer be before he can act as the Bill envisages? For what it is worth—and it may not be much—in a judgment that I gave in the Supreme Court in 2010, in the case of JS (Sri Lanka) v the Home Secretary, on the correct approach to deciding whether an asylum seeker was barred from refugee status as a war criminal under Article 1F(a) of the 1951 convention, we were concerned with the test of whether,

“there are serious reasons for considering”,

the applicant to be a war criminal. In considering what that involved, we concluded that, clearly, a lower standard is required than would be applicable to an actual war crimes trial, but that there was a higher test for exclusion than, say, having “reasonable grounds for suspecting”. We decided that the word “considering” approximated rather to “believing” than to “suspecting”.

I note from the short but helpful Library briefing on the Bill that the Home Office guidance on the approach to Immigration Rule 320(19), the paragraph that provides for an immigration officer to refuse entry if he,

“deems the exclusion of the person from the United Kingdom to be conducive to the public good”,

is that entry must be refused if the person is suspected of crimes against humanity. It is one thing to refuse entry clearance or leave to enter or leave to remain on the basis of mere suspicion, as the guidance suggests, but it is perhaps another thing, as the Bill envisages, to cancel or curtail an existing leave on that basis. At this stage, all I would say is that further thought may need to be given to the word “known”, which is perhaps too exacting a demand to make of the immigration officer and Secretary of State; it may need amendment in Committee.

Secondly, over the past few months, the House has devoted considerable time to the Sanctions and Anti-Money Laundering Bill. Knowing of this impending Private Member’s Bill, it has occurred to me from time to time that its objective could possibly have been encompassed within the sanctions provision in this substantially more comprehensive public Bill. The sanctions Bill has just reached Report in the House. Could and should this further Magnitsky provision now be introduced into that Act? At least, the possibility should be considered—unless, of course, it already has been, and for some reason of which I know nothing, it has been rejected. I suggest that thought be given to that. All that said, I repeat my strong support for introducing this further provision into our law, and I wish the Bill a fair wind.

Brexit: UK-EU Movement of People (EUC Report)

Lord Brown of Eaton-under-Heywood Excerpts

Monday 17th July 2017 Lords Chamber

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

My Lords, I, too, congratulate the committee members, their staff and advisers who contributed to this excellent report, and I congratulate the noble Baroness, Lady Prashar, on her lucid opening of the debate. I confess to seeing this report as an opportunity seized rather than, unlike my noble friend Lord Green, as an opportunity lost.

A fortnight ago, I spoke in the debate on the committee report on the acquired rights of EU citizens introduced by the noble Baroness, Lady Kennedy. The report we are dealing with today is, to a degree, related. Both reports, for example, helpfully summarise the effect of the 2004 citizens directive, spelling out the directly enforceable rights conferred on all EU citizens, as subsequently developed by the ECJ and extended to all EEA nationals. However, whereas the earlier debate concerned the sufficiency of the offer that we are now making to the other 27 states about the rights already acquired by EU citizens, today’s report concerns rather the question of how far post Brexit we should restrict the rights of EU citizens to come here. In short, it deals with proposed immigration control, not with those who already have the right to be here.

In the earlier debate I concentrated on the question of the enforcement of whatever substantive rights that ultimately come to be recognised in the withdrawal agreement, my essential point being that we should put aside our absurd red-line objection to the ECJ—perhaps in future with a co-opted British judge—having jurisdiction to resolve any disputes that may subsequently arise on the proper construction and application of the withdrawal agreement. “Enforcement” is the heading of a section of the present report, too, but here in a quite different context. Here it relates to the inevitable problems that will arise—creating, of course, reciprocal problems for our own citizens in other EU states—if we start enforcing strict immigration controls over EU citizens and, for that matter, over EEA nationals too, that are similar to those that we impose on third-country nationals. There will be problems for the Home Office, the Border Force, employers, possibly for landlords and so on. The stricter the controls, the more expensive and problematic enforcement becomes.

Even more significant than the cost and difficulty of enforcement is the price we shall have to pay for any such extensive restrictions on the free movement of workers in terms of our being allowed access to the single market, a topic upon which many of your Lordships have already spoken. I found the committee’s conclusions on this point, in paragraphs 77 to 80, of critical importance. Basically, we should be aiming to reach agreement for controls—hopefully, well short of those imposed on third-country nationals—which we hope will be compatible in the eyes of the other 27 with an acceptable free trade agreement. However, how achievable this will be and when relative to the two-year negotiating period remain to be seen.

Once again, as with the question of the future of ECJ jurisdiction, I implore the Government to set aside their red-line approach to free movement, at least to the extent of recognising the merits, certainly in the short to medium term, of exiting the single market—or, rather, the EU—by way of the EEA, a possibility that I dealt with at some length in the Brexit debate on the Queen’s Speech, when I made certain brief points in favour of taking EEA membership at least for a transition period.

For my part, I regard the total abolition of the rights of free movement of EU citizens, just as the total rejection of any future role for the ECJ, as an absurdly doctrinaire objective. Both seem to me to be misconceived as red-line issues and each is profoundly damaging to the prospects of successful Brexit negotiations. Just as the ECJ could play a useful role in resolving future supranational disputes, so too we shall continue to need a great many EU citizens who will wish to come here in the future. We should be trying to attract and encourage them rather than impose restrictions.

Obviously, the continued inclusion of students in the immigration statistics remains a puzzling and profoundly damaging mistake. The noble Lord, Lord Cormack, focused on the issue, and I suspect that the noble Lord, Lord Bilimoria, may do so as well. But in addition to students, at any rate until some future date when we have trained up and persuaded our own citizens to do these jobs, we need health and care workers, plumbers and builders, workers in the hospitality industry, for crop harvesting and food processing, and so on and so forth.

I recognise and accept the need to place some limited restrictions on the present absolute right to freedom of movement of all EU citizens, not least to reflect the apparent wishes of many—although not all, as the noble Baroness, Lady Jones, has made plain—who voted for Brexit in the referendum. Indeed, the goal of some limited restrictions on free movement now seems to be shared by a number of other EU states and before too long may well come to be accepted within the Union as a whole. By all means let us negotiate towards such a conclusion, but I urge the Government to abandon any absolutist, ideological, confrontational stance on this difficult issue. A high degree of freedom of movement for all EU workers will continue even after Brexit; it will remain an article of faith and a cardinal principle of the Union as a whole, and we shall not achieve a satisfactory future trading deal without recognising and respecting it. It is in that fundamental context that we should now consider this most valuable report.

Brexit: Acquired Rights (EUC Report)

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 4th July 2017 Lords Chamber

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

My Lords, I too congratulate the committee and its staff on producing this excellent report, and the noble Baroness, Lady Kennedy, on her illuminating opening of this debate. There is comparatively little I want to say about the substantive rights of EU citizens and their families to be enshrined in the withdrawal agreement. Mostly, I will focus on the enforcement of that agreement.

As to substantive rights, to my mind it is unsurprising that once we leave the EU, so that EU nationals no longer enjoy EU citizenship rights as such, we shall wish to put those who come to acquire settled status here on the same, rather than better, terms than British nationals, not least with regard to bringing in family members from overseas.

I would also entirely understand it if the UK were to reject what I understand to be proposed as a term of the rights to be protected—this is in paragraph 21(b)(ii) of the annex to the European Commission’s negotiating directives of 3 May—namely, certain social security rights, set out in two particular EU regulations,

“including future amendments of both Regulations”.

Surely, after withdrawal, acquired rights must be as fixed at that date—

“frozen as at the date of Brexit”—

as is suggested in paragraph 136 of the committee’s report.

As to the questions asked by the noble Baroness, Lady Kennedy, on how long into the distant future such rights will remain, I suppose that they will last as long as the person remains settled, with the consequent right in future to apply for UK citizenship. Perhaps the Minister will tell me whether my supposition is correct.

It is suggested that the EU 27 are disappointed by our proposals for EU nationals living here. What precisely, besides the question of enforcement, are the particular matters which concern them, and what do our own nationals living in other EU members states think about these proposals? Do they feel sold short by the UK? Let us remember that they will enjoy reciprocal rights under the agreement.

I turn to the enforcement of the withdrawal agreement, which is addressed by the committee in its report at paragraphs 136 to 138. In her Statement on the European Council on Monday 26 June, the Prime Minister said with regard to the offer on citizens’ rights:

“Our obligations in the withdrawal treaty with the EU will be binding on the UK as a matter of international law. We will incorporate commitments into UK law guaranteeing that we will stand firmly by our part of the deal”.—[Official Report, 26/6/17; Commons, col. 303.]


In the Government’s published proposals of the same date, Command Paper 9464, at paragraph 58 and under the heading “Legal status and enforceability”, appears this:

“The arrangements set out above will be enshrined in UK law and enforceable through the UK judicial system, up to and including the Supreme Court. We are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU)”—


which, I interpolate, is still generally referred to as the ECJ, which was its earlier incarnation—

“will not have jurisdiction in the UK”.

It is all very well for the UK Government to say that our obligations will be binding as a matter of international law, but, for my part, I could understand why that rather bland assertion might be greeted by the other 27 with some scepticism. In the Government’s original February 2017 White Paper on exiting the EU, in chapter 2 under the heading,

“Taking control of our own laws … Ending the jurisdiction of the Court of Justice of the European Union in the UK”,

paragraph 2.3—I shall not quote it all; it is all easily available—ends thus:

“We will bring an end to the jurisdiction of the CJEU in the UK. We will of course continue to honour our international commitments and follow international law”.


This red line in the Government’s position is plainly among the most damaging obstacles to the prospects of successful Brexit negotiations, as the noble Baroness, Lady Kennedy, said, on several fronts. Let me focus on that last sentence:

“We will of course continue to honour our international commitments and follow international law”,


which, of course, is what the Government now say in the present context of safeguarding citizen’s rights, but how confident of this can the other 27 states be? We have an international law commitment under the European Convention on Human Rights to give effect to Strasbourg court judgments, but we are in flagrant breach of that commitment on prisoner voting, for example. That may have been a dubious ruling, and it is highly likely that many in this country and all too probably several in Parliament muddle up Strasbourg judgments, which are those of the human rights court, and Luxembourg judgments, which are those of the EU court, and wrongly blame the ECJ for the prisoner voting decision and for other contentious decisions such as those which have periodically inhibited our ability to deport foreign terrorists.

Although this may go some way towards explaining our misconceived hostility to the European Court of Justice—its absurd and unfair demonisation, as I described it in last week’s Brexit debate—and the Government’s wish simply to acknowledge an international law commitment to abide by the terms of the withdrawal agreement, I am unsurprised that the EU 27 demand more; in short, that EU citizens’ acquired rights here should be put beyond the reach merely of the UK’s parliamentary sovereignty.

How then should this requirement best be met? The EU Committee recommends a reciprocal mechanism be established to ensure that UK and EU law each takes account of the relevant developments in the other’s law. To this end, the committee suggests an arrangement akin to that provided for under the 2006 extradition agreement between the EU, Norway and Iceland—see particularly Articles 36 and 37 of that agreement, as set out at paragraph 134 of the report.

For my part, however, I would regard this as a needlessly cumbersome and ultimately less effective route to finding a satisfactory, supranational tribunal to which a disappointed party could turn for a final definitive interpretation and application of an agreed provision—why not the ECJ itself? To anyone who questions that on the basis that, after Brexit, the ECJ will not be an independent supranational court but rather will be akin to the supreme court of one of the parties to the withdrawal agreement—namely, the other 27 EU states—I would respond, first, that this is an unreal objection given that, whatever the court were to rule on a reference would apply no less to UK nationals now settled in other member states. Indeed, those expatriate UK nationals will have no less, and sometimes perhaps rather more, of a need for a supranational tribunal to which to appeal from another member state’s supreme court. Secondly, I would suggest that, even though there may no longer be a UK judge on the ECJ after Brexit, one could be specifically nominated as a member of the court for the purpose of any UK reference. A close analogy here would be with the ECHR, where, on any application against a member state whose own judge may in the circumstances for any reason be unable to sit—they may be conflicted, unwell or whatever—that state can nominate another judge. Indeed, I twice sat on that basis as an ad hoc judge in the Strasbourg court.

If there is to be any hope of a successful Brexit negotiation on a number of issues, including that now before us, the Government will have to modify their puzzling ideological resistance to any future acceptance of the ECJ’s jurisdiction. Surely this would be a good place to start.

Criminal Finances Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 28th March 2017 Lords Chamber

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

My Lords, in common with the noble Lord, Lord Faulks, I too oppose Amendment 1. These unexplained wealth orders, in my submission, are to be welcomed and we must do nothing to dampen them at their outset. However, to put the criminal burden of proof into the very first provision would, I suggest, do just that. This provision surely should be based on the balance of probabilities.

Government Amendment 6 will introduce into new Section 362B(2) being inserted by the Bill, as the test of satisfaction,

“that there is reasonable cause to believe”.

Your Lordships will notice that new subsection (3) sets out a different test, that of being,

“satisfied that there are reasonable grounds for suspecting that the known sources of the … lawfully obtained income would have been insufficient”,

while new subsection 4(b) says there should be,

“reasonable grounds for suspecting that … the respondent is, or has been, involved in serious crime”,

and so forth. To “suspect” something is merely to suspect that it may be the case; to “believe” something is to believe that it is the case. These tests therefore differ. I do not know, but perhaps the one under new subsection (3) could be tightened. Rather than trying to introduce the criminal burden in the first provision, those who would like to make these orders more difficult might at least want to consider whether “reasonable grounds for suspecting” should be uplifted to the requirement the Government are introducing in amended new subsection (2): that there is “reasonable cause to believe”. For my part, I would introduce as the first provision a balance of probability test and leave the others essentially where they stand.

My only further thought is that if the House—to my mind, unwisely—were to raise the threshold remotely as high as the amendment in the name of the noble Baroness, Lady Hamwee, suggests, you would want the lowest test to be enshrined in the Bill; whereas with a lower sum in question, you might want a correspondingly higher test. Those are thoughts, because this, after all, is at an early stage and these are essentially probing amendments.

[Lord Blair of Boughton]

I am glad that I did not interrupt the noble Lord, Lord Faulks, because he and the noble and learned Lord, Lord Brown, approach this matter from long knowledge of the law. I would like to consider the amendment of the noble Lord, Lord Hodgson, in relation to the investigative process. UWOs are effectively a search warrant. That is the test, and that is not beyond reasonable doubt. You have a search warrant because you think something might be happening. When you have executed the search warrant, you know whether it has happened or not and at that point, you might charge someone with a criminal offence, for which the test would be “beyond reasonable doubt”. From an investigative point of view, that amendment would put at the front of the operation a test which is almost impossible to pass unless you issue the order and effectively use a search warrant on the individual’s bank balances.

--- Later in debate ---

[Lord Deben (Con)]

My Lords, I support the amendment because I have been for many years concerned about housing. This issue is a matter not just of corrupt investment but of investment in housing for purposes which are other than housing. This is a very serious social issue in London and other cities. If the Government do not take it seriously, they will reap the whirlwind.

The number of such houses and flats—real estate—in London in particular, causes considerable resentment among those unable to buy their own home. It is no good any party any longer ignoring it. All parties have to admit that they have not solved this problem. This is not a party-political comment, but it is an increasingly serious matter because it is creating divisions in our society which are greater than they have ever been. I ask Members of your Lordships’ House to remember when it was possible for them as young people to buy a house or a flat in London, now to think about their children or grandchildren unable to do so and to recognise the divisive effect of that. It is against that background that this amendment should be considered.

The second issue is simply that most of us are fed up with the intrusive questions asked by people with whom we have banked for most of our lives, including being asked to send one’s utility bills to a bank with which one has had an account that has been in reasonable order for 60 years because it has to meet the perfectly understandable anti-money laundering arrangements. The second resentment is that normal, ordinary British people have to go through this amazing series of hoops to bank money or get money out if they wish to do anything which is slightly out of the ordinary, yet they know perfectly well that the banks must have been involved in the transmission of money in situations which are, at the very best, dodgy.

I, too, sought some figures about who has been prosecuted for this. It actually beggars any kind of belief that no bank of any kind has ever helped anybody to buy, with improperly gained foreign money, property in London. I am sorry but that does not stand up. So the second disillusion that comes is that decent people in this country go through this kind of unbelievable series of hoops knowing both that they must accept them because of the security that we properly wish to impose and that others avoid this to the tune of millions and millions of pounds.

The third reason this amendment is so important is that there is a real concern in this country, with the atmosphere of Brexit, about attitudes to foreigners. I am an absolute and continuous remainer and will not be pushed off that by anybody’s arguments, so I am biased. However, I do not like the society we are building in circumstances of antagonism to foreigners of all kinds. That makes it even more important that where dishonourable activities take place and money earned dishonourably elsewhere is invested in this country that is dealt with clearly and transparently, so that the kind of accusations that are and have been made against people who invested here honourably are totally distinct from that which has been unacceptable.

My fourth reason—and last, as the House will be pleased to note—is that we recently, honourably, passed the Modern Slavery Act. We are beginning to be serious about the way in which people are exploited and the benefits of that exploitation coming to people in this country. People are serious about this, the Government have been serious about it and it has all-party support. If we are serious about the Modern Slavery Act, we must also be serious about the proceeds of crime and often of exploitation being brought into this country and used in the real-estate world. That is why I beg my noble friend to take this amendment very seriously. It addresses some deep disillusion in our society and also some deep injustice in the society of the world. This is not just a passing amendment to tease out the Government’s position here and there but a fundamental amendment that challenges the whole of our society to behave in a way that we can be proud of, rather than one that facilitates activities we should condemn.

[Lord Brown of Eaton-under-Heywood]

My Lords, I start with a very pedantic point. If this amendment is to go ahead, it needs to begin with an “or”. As the noble and very clever though not technically learned Lord points out, this is a further alternative to the two already listed in new Section 362B(4). The next point is that of course the property here envisaged, registered in the name of an overseas company in which the respondent has an interest, is not—I repeat, not—the same property as referred to in subsection (1), in respect of which one seeks to have an unexplained wealth order made. It is a different property altogether.

I have great sympathy with the amendment and the policy underlying it. Like the noble Lord, Lord Deben, I deplore the extent to which London properties are in foreign ownership nowadays. But I respectfully wonder how far the amendment would go—if any distance—in actually dealing with that problem and with money laundering. Surely with regard to most of the people who buy and own these London properties—if they are not already PEPs, or politically exposed persons, and we know that a lot of them probably are—nobody questions how much money they have. But would it not then be rather difficult to satisfy the earlier requirement —which, again, has to be satisfied to make one of these orders—in new subsection (3)? Each of the various requirements set out in proposed new subsections (2), (3) and (4) has to be satisfied. First you have to show that they hold property of the relevant value; then, in new subsection (3) you have to be satisfied that,

“there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property”.

The property there being referred to is not property in London registered in the name of an overseas company, it is the property in respect of which you are seeking a UWO.

Those points need to be borne in mind before one goes down this particular road. It is not going to be the panacea that some who have contributed to the debate thus far seem to think it is likely to be.

[Baroness Kramer (LD)]

My Lords, I do not pretend for a moment to have the drafting skills of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, but I associate myself with all the other comments that have been made on the amendment. Rather than repeat the issues that have been so well described, I want to pick up the point that the noble Lord, Lord Faulks, made—that this Bill is a real and rare opportunity to tackle this problem, which, as he will have heard, exercises Members on all sides of the Committee and is essentially a non-partisan series of concerns.

When I had the privilege of sitting where the Minister is sitting, I brought a Bill through this House which was fondly and informally known as the “Dump it in here” Bill. It is perfectly possible, even at this stage, for the Government to come forward with some well-drafted language that would achieve the goals that have been described by various noble Lords today and by others who have been concerned about this issue. The Government have been looking at it for a long time. Given the fact that it will be difficult to get new legislation through in the next couple of years, I urge the Government to look at drafting that language—they have the capacity to do it and would be in a position to do it—that would bring into the Bill the kinds of remedies that would require the public register of beneficial interest for property ownership that presently we do not have in the UK. I met representatives of the British Virgin Islands the other day. The British Virgin Islands actually has such a register and would be delighted to provide mechanisms and recommendations to the British Government if they felt they needed advice in this area.

--- Later in debate ---

[Lord Rosser]

My Lords, I have Amendment 72 in this group. The Bill provides for extensions to the suspicious activity reports regime under which private sector companies report suspected money laundering—or, at least, they are meant to. The extensions or enhancements enable the moratorium period during which the relevant law enforcement agencies can gather evidence to be extended and provide a power enabling the UK Financial Intelligence Unit in the National Crime Agency to obtain further information from suspicious activity reporters. The enhancements also create a legal basis for sharing information between companies in order that they can build up a clearer picture of suspected money laundering.

Amendment 72 would provide for a procedure, through the National Crime Agency, for prioritising the most serious suspicious activity reports to target effectively the use of scarce law enforcement resources. Private sector companies and professionals, such as accountants, are required by law to make a suspicious activity report every time they become aware that a person might be in possession of the proceeds of crime, and that applies equally even if the amounts involved are small or if the information is far from conclusive or far from being considered fully reliable. The same duty to report applies whether the suspicion relates to a theft of a few pounds from petty cash or to what could be serious organised crime.

At present there appears to be no means by which information may be quickly screened or sifted to determine which are likely to prove the most significant or important reports requiring full investigation. There were just over 380,000 individual suspicious activity reports in 2015, and considerable time must be spent processing essentially very minor crime reports, which can only be at the expense, resource-wise, of the investigation and detection of crimes at the serious end of the scale. This amendment seeks to address that situation by providing for priority levels based on the intelligence value of each report, or a similar kind of categorisation, which would give an appropriate risk-based approach to determining which economic crimes should be tackled as a matter of urgency.

At Second Reading, the Government said that the issue raised in this amendment on suspicious activity report reform was lacking in the Bill, even though reform of the SARs regime was a crucial part of the Government’s own action plan for anti-money laundering and counterterrorist finance. The Government went on to say that they had established a programme to reform the SARs regime, and were seeking improvements in the short, medium and long term. They then went on to say that, during the review of the SARs regime that the Home Office ran in 2015, a number of regulated-sector companies suggested that suspicious activity reports should be prioritised, which is what this amendment is about. Despite this, they went on to say at Second Reading:

“We will consider this as part of the SARs reform programme”.—[Official Report, 9/3/17; col. 1518.]


However, the review was two years ago, in 2015, and a number of companies affected raised the issue addressed in this amendment in response to the review. Why, two years after the review, cannot the Government make a decision to do something to address this matter of prioritising reports rather than continue to put off making a decision? Surely, in all the discussions that would have taken place on this Bill before it was brought to Parliament and during the debates on the Bill so far in Parliament, prioritising SARs reports, which had after all been raised in the 2015 review, could and should have been considered, since it is directly relevant to the content of the Bill?

I hope that the Government will recognise this reality, and give a positive response to this amendment and, if that is not possible—and I would like to know why, if that is the case—accept that Report is now likely to be another four weeks away, with Third Reading being five weeks away, and agree to bring back a government amendment on Report or at Third Reading to address the issue raised in the amendment.

[Lord Brown of Eaton-under-Heywood]

I want to address only Amendments 58 and 59, both of which I oppose, to new Section 336B on page 28 of the Bill. That section deals with an application under the previous section to extend the moratorium period, which has to be dealt with as soon as is practicable. New subsection (3) says that the court,

“may exclude from any part of the hearing … an interested person”,

or “anyone representing that person”. We see that formulation again in new subsections (4) and (6). They are the people whose presence or otherwise at the hearing is in question.

New subsection (4) allows for a particular application, that certain specified information may be withheld from the interested person or representative, but that order can be made only under new subsection (5), if the court is,

“satisfied that there are reasonable grounds to believe that if the specified information were disclosed”,

something bad would happen—that either,

“evidence of an offence would be interfered with or … the gathering of information …would be interfered with”,

or somebody would be injured, or,

“the recovery of property … would be hindered, or … national security would be put at risk”.

In that situation, new subsection (6) comes into play. Unlike new subsection (3), which we looked at earlier, where the court “may exclude”, in this instance—because it relates to an application under new subsection (4)—the court inevitably “must” direct that the interested person or his representative be excluded. With the best will in the world, I cannot see how we could sensibly leave out new subsection (6), which puts a requirement on the court which is not to be found in new subsection (3), which deals with the general position. Nor would it make any sense whatever to substitute “may” for “must”. You have already got “may” in new subsection (3), but for this situation, “must” is the appropriate direction to the court for the order to be made. I respectfully oppose those amendments.

[Lord Hodgson of Astley Abbotts]

My Lords, I support Amendment 72, in the name of the noble Lord, Lord Rosser. It has been common ground in our discussions this evening that the volume of SARs is rising all the time. There are now over 1,500 a working day and it slightly defies belief that those are all getting anything like the attention that they should. Those of us who have had experience of this find that the National Crime Agency is extremely reluctant to allow any inhibition on its ability to call for SARs at every level. It should be possible to have discussions about automatically asking for a time limit—not that the information could not be asked for subsequently—of 25 or 50 years. One of my most recent PEP inquiries involved events 53 years ago. I simply cannot believe that collecting that sort of information is a good use of my time or the bank’s. There would be a great deal of virtue in my noble friend trying to persuade the NCA that some focus was a good idea. Getting the focus that is badly needed, and things like time and a de minimis figure, would make the whole system much more effective. The amendment tabled by the noble Lord, Lord Rosser, is a first step towards that and is worthy of serious consideration.

Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading (Hansard): House of Lords
Friday 10th March 2017 Lords Chamber

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

My Lords, I congratulate the noble Baroness, Lady Gale, on bringing forward the Bill and introducing it so admirably and comprehensively. Yesterday afternoon when I inquired in the Whips’ Office how many were down to speak in this debate, I was somewhat surprised and really rather shocked to find that there were in fact only five—now there are six—and that they included not a single male Temporal Peer. So I put my name down, because heaven knows this is a worthy and indeed compelling cause that is deserving of support no less from men than from women.

We all know the appalling prevalence still today of violence towards women, both domestic and in wider society. I sat as a judge at various levels for 28 years and therefore came across perhaps more than my fair share of this violence, particularly in my earlier years as a High Court judge sitting at the Old Bailey and then around the country on circuit—murder, rapes and all those dreadful sorts of offences.

I have few boasts to my name by way of legal achievement, few jewels in my judicial crown, but I can and do boast of being the first judge in this jurisdiction, in I think 1990, to rule that a husband is not permitted in law to have intercourse with his wife quite simply whensoever he chooses—in short, that there is such an offence as marital rape. That decision was said at the time to fly in the face of centuries of established legal principle but in fact, happily, it was upheld by both the Court of Appeal and indeed the Appeal Committee in your Lordships’ House.

Reading the excellent Dr Whiteford’s speech towards the end of the debate in the other place on Third Reading, I was struck by this passage, which, if your Lordships will allow me, I will quote:

“On reflection, it strikes me powerfully that Parliament has frequently been left playing catch-up on progress for women: from those who campaign for women’s suffrage for more than a century before it was achieved to those trade unionists fought for equal pay for women years before the Equal Pay Act 1970 came into force and the women who, in the 1970s, set up refuges for women fleeing domestic abuse at a time when there was absolutely no support from the state or the authorities for women experiencing violence or coercive control from an intimate partner—a time when rape within marriage was not even a crime. Every step of the way, it is citizens who have driven progressive change. Sisters have had to do it for themselves”. —[Official Report, Commons, 24/2/17; col. 1334.]


I thought it was time for a brother to enter the fray.

Of course I recognise, as Mr Nuttall and Mr Davies were at pains to emphasise in the debate in the other place, that there is all too much violence in society and in certain domestic contexts against men and boys too. The Istanbul convention and the Bill on their face appear to do nothing for them. But there can be no doubt, as the noble Baroness made plain in opening the debate, that it is women who suffer disproportionately. They suffer most from the hands of the opposite sex. There is absolutely no basis to suggest that advancing their cause, as the Bill proposes, will set back the cause of male victims. Quite the reverse: anything that raises the stakes, that raises the public’s awareness of and revulsion at violence generally in society, will redound to the advantage of all victims.

Of course I recognise that the Bill—and the Istanbul convention—does little of itself to alter the substantive law under which we seek to deter and control violence against women. To say it does nothing is something of an exaggeration: the convention requires that we broaden our extraterritorial jurisdiction so as to promote international co-operation in combating violence against women. That, indeed, is why the Bill was amended in the Commons: to recognise the need for some small further delay beyond even the years since we initially signed the convention. The delay is to identify precisely and then to satisfy that requirement for extraterritorial jurisdiction.

As Mr Nuttall himself said in the other place:

“The purpose is to try to tie down the Government to doing something and to stop this matter from drifting on”. —[Official Report, Commons, 24/2/17; col. 1337.]


As has already been noted, the other place voted to pass the Bill by 138 votes to 1. Your Lordships will readily agree that it would be nothing short of disgraceful and deeply damaging to the reputation of this House if we do not now ensure that it secures safe and speedy passage at all stages through our House. I therefore wish it God’s speed to secure its early passage if not in this Session, certainly in the next.