Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[Baroness Hamwee (LD)]

This is another of those occasions when saying “From these Benches, we support” and not much more must not be taken as any lack of support for all the amendments in this group, nor any dilution of the points made.

I just want to register concern about Clause 32(2). The noble Baroness, Lady Lister, spoke to this and I record our support, particularly for the amendment that deals with what is meant by “a particular social group”: that you do not qualify unless the group in question is perceived as being different by surrounding society. As has been pointed out to noble Lords in briefings, a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic but that trafficked women as a group are perceived as having a distinct identity in the country of origin. That is very difficult to show. Judged by the perceptions of the society in her country? It would be very challenging to find objective evidence on that, and on that being a distinct group. It is very dangerous to suggest that one can tell those things by looking—or, rather more accurately, perceiving.

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

My Lords, I spoke at some length on the legal aspects of this group of clauses in Committee and, having had the advantage of being able to indicate an overall view of them in the newspapers earlier in the week, I really do not want to try the patience of the House, and I certainly do not want to weaken rather than strengthen the number of compelling arguments that have already been heard on them in the past few minutes.

However, they are such objectionable clauses that I cannot simply remain silent. I do not criticise the Minister for this, I am a great admirer of his, but on Monday, at 5.49 pm, in the middle of the debate, we finally got a seven-page letter that sought to argue—if only I were still a judge and could deal with the arguments conclusively by rejecting them—the Government’s case for redefining the requirements of the convention.

When we come to Clause 31, the Minister, very fairly, recognises that it would overturn 25 years—a quarter of a century—of settled jurisprudence of the clearest authorities in this country. That is how we have been dealing with it for 25 years. He does not say that it was a wrong approach to the convention; all he argues—as I say, I do not accept it—is that what they are doing provides another possible interpretation of the convention. Is this really the moment at which to reject our established jurisprudence and substitute for it what may or may not—I would say not—be an arguable alternative view of the whole of this.

Clause 31 rejects what has been accepted as the holistic approach: you look at fundamental question arising under Article 1(A) of the convention in the round, you take all circumstances into consideration and you apply the standard of proof of reasonable likelihood—because heaven knows that is the standard which you should be using. You do not carve it up and create endless difficulties, and then say, “Well, actually, part of it has got to be on the balance of probabilities”.

I have quoted this before, and I will end with this: Hugo Storey, a recently retired judge of the Upper Tribunal who has spent his life dealing with these sorts of cases and is the immediate past president of the International Association of Refugee and Migration Judges, said that this clause would produce prodigious litigation and endless problems, and that it is not compliant with the way that the UNHCR wants Clause 31 to be applied. I will not go into the arguments on Clauses 32, 34 and 36—they are all objectionable, for the reasons already given. We really must vote down as many of these as we can.

[Lord Rosser (Lab)]

My Lords, I will be very brief. I wish to say that we agree with the amendments in this group, which seek to address the issue that the Bill is seeking to change existing, long-standing definitions and, frankly, make things worse and harder for many of those who would be involved in, for example, seeking asylum. We support the intention of these amendments, and I will leave it at that.

Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[The Paliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for proposing the new clause. The noble and learned Lord, Lord Judge, said that it was a short one; I respectfully agree, and hope that I can be brief in response without any discourtesy to the noble and learned Lord or, indeed, the other proposers of the clause. One point in his speech on which I think the whole House agreed was when he reminded us that, whatever the question, the noble Lord, Lord Pannick, will always be able to think of an answer.

Turning to the subject matter of the amendment and the proposed new clause, I first underline what was said by my noble friend Lady Williams of Trafford as to the Government’s commitment to their international legal obligations flowing from the refugee convention. Not only is it our intention to continue to comply with all of the legal obligations under that convention but we consider that this legislation does precisely that.

Our starting point is that the provisions of the Bill are compliant with the refugee convention but, none the less, the new clause is not something that I can support. Let me set out why.

The refugee convention, as I have said before, and effectively by design, leaves certain terms and concepts open to a degree of interpretation. That is an important feature of international instruments such as the refugee convention, allowing it not only to stand the test of time—some might say that it could now usefully be reviewed, but that is a separate point—but, more importantly, to be applied in and across many jurisdictions with differing legal systems. Necessarily, therefore, there is then a need to ascribe meaning to the terms of the convention at a domestic level. That meaning is determined by each signatory to the refugee convention in accordance with the principles of the Vienna convention, taking a good faith interpretation in accordance with the ordinary meaning of the language used in the convention.

Against that background, I suggest that it is absolutely right that Parliament may pass legislation setting out how the UK interprets the refugee convention and the UK’s obligations under it. Having a clear framework of definitions, and setting out unambiguously the key principles, promotes clarity and consistency in how decisions are made; as I have said in previous debates, that is a desirable approach. The mischief that I see in this amendment is that it would risk undermining the clarity and certainty that we are trying to create by effectively giving the courts a chance to look behind the interpretation agreed by Parliament in primary legislation when that interpretation is then applied through policy and subsequent decisions.

On the one hand, we want to give the pen to Parliament, so to speak, to set out a clear understanding and interpretation of the convention; Part 2 of the Bill is very clear as to our intentions in this respect. However, I suggest that this amendment would afford the courts an opportunity to come to a different understanding when looking at the policies and practices which put that system into effect. Of course, I accept that it will be for the courts to interpret the legislation once enacted, and I do not disagree that the courts have a role in overseeing whether policies or decisions comply with the interpretation of the convention as set out in the Bill; that is a given. But it is Parliament’s interpretation that is key here. It is not for the court to set out its own, potentially conflicting interpretation of the refugee convention and the obligations under it.

Therefore, far from creating a certain and consistent approach, this promotes uncertainty with policies and decisions being potentially judged against differing interpretations. If we are content, as I suggest we should be, that Parliament is legislating in compliance with the approach open to all state parties under the Vienna convention—that is, affording a good faith interpretation to the refugee convention—then this clause is not only unnecessary but promotes confusion and uncertainty for all those seeking to apply to, and comply with, the asylum system.

It would also be unusual to put in primary legislation the statement that Parliament, when legislating, is complying with its international obligations. International conventions cover a wide area of legislation, and if we did so here it could create questions as to why we did not do so in other statutes and why other statutes do not provide the same assurances.

The noble and learned Lord, Lord Judge, as alerted by the noble Lord, Lord Pannick, mentioned Section 2 of the Asylum and Immigration Appeals Act 1993. That already sets out the primacy of the refugee convention in domestic law. I will repeat what it says:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”


Accordingly, if the aim of this proposed new clause is that the policies implemented under Part 2 of this Bill through the rules or connected guidance are meant to be compatible, and not incompatible, with the refugee convention, as interpreted by Parliament in this Bill, that can already be challenged by way of Section 2 of the 1993 Act. Our policies and decision-making will continue to be made in accordance with the Immigration Rules or published guidance.

What, therefore, would this proposed new clause add? My concern is that it adds a means for the court to question the interpretation given by Parliament to the refugee convention. I suggest respectfully that this would be contrary to a fundamental purpose of this Bill: for Parliament to define the nature of our obligations under the refugee convention while remaining compliant with those obligations. The proposed new clause 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.

To put it in two sentences, if the aim is to make sure that the Immigration Rules and guidance are compliant with the refugee convention, that is already done under the 1993 Act. If the aim is any more than that, I respectfully suggest that it trespasses on a fundamental purpose of this Bill: that Parliament, and not the courts, should interpret how the UK implements the refugee convention. For those reasons, I respectfully invite the noble and learned Lord to withdraw the amendment.

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

Before the noble Lord sits down, do I understand that it is the Minister’s intention that, if this Bill is passed in its present form, in future no court shall look behind its provisions and consider what, under the convention and with the advice of UNHCR, its proper application and interpretation are? Is that the Minister’s intention?

[Lord Wolfson of Tredegar (Con)]

In so far as the court has been told by Parliament that it can do that in the 1993 Act when it comes to the Immigration Rules, the court can do so. But, with the greatest respect, the courts interpret legislation; they are not there to go behind legislation with an autonomous meaning, so far as the courts are concerned, of what the refugee convention means. What the convention means is a matter for the member states, each interpreting it under the terms of the Vienna convention. With respect, it is not for the courts to second-guess Parliament’s interpretation of the UK’s obligations under the refugee convention.

--- Later in debate ---

[Lord Green of Deddington (CB)]

My Lords, I will just say a word in support of what the noble Lord, Lord Horam, said, about public opinion. We have to be careful here. A substantial slice of public opinion is concerned about the scale and nature of the inflow of people claiming to be refugees, and the shambles in the channel at the moment is no help. We need to bear that in mind in all our discussions. I do not think that the policy itself will work, and I do not think that the division into this or the other class of refugee will help. But let us not, for goodness’ sake, get carried away by our own righteousness and forget that there are a lot of people in this country who are not in situations as comfortable as ours who look to us to make sure that, in so far as there is an input of refugees, they are genuine.

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

My Lords, I would not want that to be quite the last word. The speech made by my noble friend Lord Kerr was not merely powerful, it was compelling and irrefutable. As a matter of law, I have spoken on this before in Committee. I am not going to repeat all that, but do we really believe that the inhabitants of Blackpool, Doncaster or the deprived towns spoken of by the noble Lord, Lord Horam, and reflected in the contribution of my noble friend Lord Green, are so much less understanding, less sympathetic or less kind than the Poles, who are welcoming these vast hordes of people? We are not going to be asked to take that sort of number.

It is a dismaying thought that we really believe that our fellow countrymen, at this crisis in world events, would turn their backs, which is, in effect, what is being suggested. Are we really going to condemn, as Clause 11 is designed to do, rafts of asylum seekers—genuine refugees—to the loneliness, isolation, desperation, destitution and failure to be able to bring their families that it is suggested we now must to stop people crossing the channel, or to appease those in our deprived areas who do not want vast numbers of more refugees? I fervently suggest not. I would have hoped that, in this ghastly moment of history, the Minister would say, “This is not a moment to promote a Bill like this. We must withdraw it and think again”. No doubt, that is above his pay grade: indeed, considering that he is unpaid, that is not a very high bar. However, I really urge those responsible for this grotesque piece of legislation not to try to persist in it at this juncture.

[Lord Paddick (LD)]

My Lords, if those seeking asylum in the UK are genuine seekers of sanctuary from war and persecution, they are entitled to all the rights afforded to refugees under the refugee convention. Even if they are eventually found not to be genuine refugees, they are entitled to have their claim considered and their welfare safeguarded while it is being considered. A number of noble Lords have talked about public opinion. In answer to the noble Lord, Lord Horam, who appears to think that this is all about people crossing the channel, Clause 11 would make Ukrainian refugees who made it to Poland and then flew to the UK second-class refugees. If—I say “if”; I am not saying that this is the case—there is concern in public opinion, it is a concern about immigration, not a concern about refugees.

This is a very generous nation. If you speak to people in the towns and cities that the noble Lord, Lord Horam, has mentioned, the vast majority will say, “Of course we want to help those people fleeing the war in Ukraine”. They are concerned about being overwhelmed by immigrants, but only 6% of immigration in recent years has been by asylum seekers. That is why Clause 11 is not right and not necessary. Once asylum seekers have presented themselves and their claim in the UK, they are entitled to have their claim considered without fear or favour, regardless of where they came from and how they got here. They should not be treated differently on that basis. We should take Clause 11 out of the Bill and, when the noble Lord, Lord Kerr, tests the opinion of the House, we will be voting with him.

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.