Criminal Finances Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading (Hansard): House of Lords
Thursday 9th March 2017 Lords Chamber

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

My Lords, if my speech appears somewhat bland, as I fear it may, it is not for any want of enthusiasm for the Bill, but rather because I have not yet had time to give it the full and detailed scrutiny that it undoubtedly requires.

I applaud the Bill’s intent: in broad terms to strengthen and widen our powers to strip international and domestic criminals—fraudsters, money launderers, terrorists, tax evaders, gross human rights abusers and so on—of their ill-gotten gains. I am in no position to criticise, but I regret the Bill’s length and complexity at 171 pages. This is in the context of an existing regime essentially based on the Proceeds of Crime Act 2002, the subject of a leading Oxford University Press textbook, which itself is more than 700 pages. There have been a large number of reported cases on POCA over the last 15 years, all of which resulted in lengthy judgments—alas, not all easily reconcilable. Indeed, I had the misfortune to sit on several of them, though fortunately not on one of the last leading cases, Waya, heard in the Supreme Court in 2011-12. The first hearing, before five justices, failed to produce any coherent judgment, even by a majority. It had to be relisted some months later before nine justices, including the then Lord Chief Justice, my noble and learned friend Lord Judge. The judgment then took a further nine months to prepare. I mention these matters only to emphasise the inherent complexity of this area of the law and the absolute need to produce clarity and, wherever possible, simplicity in the provisions being introduced by the Bill.

That the Bill is highly desirable in principle cannot be doubted. The May 2013 foreword by the then director of the Serious Fraud Office to the OUP book I mentioned referred to the huge improvement effected by POCA on the very limited scheme, first introduced in the Criminal Justice Act 1988, for ensuring that crime should not pay, but it also recognised remaining weaknesses and gaps in the POCA scheme. The editors of that book suggested, in their preface, the need to re-examine the existing regime and for new and reinvigorated emphasis to be placed on the recovery of ill-gotten gains.

On the statistics, the editors pointed out the regrettable failure of POCA to have made any effective breakthrough in terms of recovery—rather the reverse. The annual proceeds of crime in 2013 were estimated, very roughly, at between £19 billion and £48 billion a year. Annual recovery by way of all measures—cash forfeitures, criminal confiscation, civil recovery and, indeed, penal taxation—amounted in each of the five years from 2006-07 to 2010-11 to between only £125 million and £161 million. It is greatly to be hoped that, with the enlarged enforcement powers provided by the Bill, a very substantially higher proportion of criminal gains will be recovered by the state and, to my mind altogether more importantly still, stripped from the criminals.

There is much to be welcomed in the Bill. Of course, it goes well beyond curing the deficiencies in the existing POCA scheme. A number of the individual measures positively gladden the heart. Prominent among them, surely, are the unexplained wealth orders, the enhanced and improved suspicious activities report regime, forfeiture of assets of gross human rights violators—the so-called Magnitsky amendment—corporate responsibility regarding facilitating tax evasion, measures to combat terrorist financing and so forth. Close scrutiny of these and much else will, of course, be for another day—or, rather, days—but for now I simply put on record my necessarily preliminary but otherwise full support for the Bill and wish it well.

Brexit: UK-EU Security (EUC Report)

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 7th February 2017 Lords Chamber

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

My Lords, that we shall be leaving the EU must now be a given and although personally I was a remainer, I intend to speak and vote in the forthcoming debate, albeit with a heavy heart, in favour of authorising the proposed Article 50 notification. It is in that context that we now need to consider the vital issues that arise as to our future co-operation with Europe in the field of security and justice. On this I, too, pay tribute to the work of the noble Baroness, Lady Prashar, and her committee in producing this excellent and perceptive report.

I put my name down for this debate only late yesterday, when I noticed that there was close to a dearth of lawyers due to speak. Nor was there any member of the Lords ad hoc committee under the chairmanship of the noble Lord, Lord Inglewood, which two years ago reported on our extradition law and practice. It is principally upon that matter that I will concentrate today, and more particularly on the European arrest warrant which in that extradition committee we explored in the greatest detail—the noble Baroness, Lady Ludford, was one of many expert witnesses before us. In doing so, I should perhaps say that in my judicial capacity I have been involved over the years in a good number of extradition cases, including a number with the noble and learned Lord, Lord Hope of Craighead, who is almost in the Chamber. Latterly, they included that of Mr Assange—not that we have yet managed to extradite him.

To my mind, based on that experience it is really quite difficult to exaggerate the huge benefit of the EAW to the goal of attaining justice with regard to cross-border crime and so forth, and avoiding safe havens for criminals across Europe. Undoubtedly, it has promoted speedier, cheaper, more streamlined and, I would argue, fairer processes overall than previously existed. The DPP has described the EAW as,

“three times faster and four times less expensive”,

than the alternatives. Let us consider some basic statistics. Before 2004, when the scheme came into force, fewer than 60 people a year were extradited from the United Kingdom. Since 2004 more than 7,000 individuals, over 95% of them foreign nationals, who were either accused or already convicted of criminal offences, have been extradited from the UK to other member states, and more than 1,000 have been extradited to the United Kingdom from other member states to face justice here.

Following the attempted second Tube bombings on 21 July 2007 we managed to extradite one of those involved from Italy back here, under a European arrest warrant, in just 56 days. We should contrast that with the 10 years it took to extradite one of those convicted of the terrorist bombings in Paris from the UK to France under previous arrangements. Notice, too, Operation Captura between Spain and the UK, which again is illustrative: through the scheme it has, since 2006, procured 61 wanted criminals who were arrested in Spain and returned here. Paragraphs 126 to 128 of the report emphasise the huge value of the European arrest warrant in extraditions, as described by those principally responsible for criminal justice in the UK, and the deficiencies of the pre-existing system. As one noble Lord has already observed during the debate, that system was based on the Council of Europe’s 1957 convention on extradition.

Manifestly, Brexit notwithstanding, it is imperative that we maintain the benefits of the EAW scheme—but how do we achieve that consistent with the Government’s avowed intention to sever our link with the ECJ, nowadays called the CJEU—the Court of Justice of the European Union? Oddly, our submission to the jurisdiction of that court seems to be almost doctrinally central to the Government’s policy in implementing Brexit. As part of regaining our sovereignty, the Government appear to regard it as a core principle that in future our laws will be made in Westminster, not Brussels, and that any legal issues arising will be decided not by the ECJ in Luxembourg but by our courts.

It might be thought that as an erstwhile senior British judge, albeit now five years retired, I would enthusiastically welcome such a change: a restoration of final authority on legal disputes to the Supreme Court—although here, unlike in the States, it is always subject to Parliament’s legislative power to override the court’s decision. Indeed, it is, in some ways, satisfying that we shall no longer be bound by rulings of the ECJ. On occasion, they are somewhat expansive rulings, open to accusations of judicial overreach in pursuit of an agenda of ever-closer union. Certainly, I am perfectly happy to think that, with regard to vast swathes of our law, we shall no longer be required to refer and defer to Luxembourg on any uncertainties as to the correct construction and application of EU provisions on VAT law, procurement law, planning law, environmental law, employment rights legislation, equality legislation, and on our attempts on public interest grounds to remove EU citizens who have committed a criminal offence here.

All these matters and, indeed, many more, are currently subject to Luxembourg rulings and so to innumerable EU-based regulatory schemes which, come Brexit and the so-called great repeal Bill, we shall either have to abandon or, more probably, incorporate in existing or amended form into domestic law. Inevitably, if we keep them, it will be as they have evolved and developed in the light of past ECJ judgments—but as for the future, they will presumably be subject only to rulings of our own courts, any subsequent Luxembourg decisions in point being merely persuasive rather than binding in effect.

That will be the general position. But—here I return to the European arrest warrant and various of the other 35 measures relating to police and judicial co-operation in criminal justice which we opted back into in 2013 of the 130 such third-pillar measures we opted out of post Lisbon—severing our link to the ECJ need not and should not be the position in relation to many of those measures, particularly those covered in the report: not only the EAW but, for example, Europol, Eurojust and various data-sharing and information-sharing arrangements. In this critical area of security and criminal justice, it is essential that the Government recognise the need to continue accepting the jurisdiction of the ECJ in this relatively narrow context.

That is the modest enough price to be paid for the huge benefits of operating—necessarily internationally—schemes to combat the ever-increasing tendency of criminals to operate and travel across borders. In this limited regard, I urge the Government to put aside their surely somewhat doctrinaire approach to the so-called recovery of sovereignty. Whatever supranational adjudicative tribunal we submit to, in this or any other area of international dispute, to that extent inevitably we are, if one chooses to look at it in this way, surrendering sovereignty. So what? It is for the greater good. The International Court of Justice and the European Court of Human Rights are just illustrations of this.

I know that the Government are hoping for some kind of bespoke supranational means of supervising the future operation of the EAW scheme, and no doubt of other such schemes that we have been discussing—but why on earth should the other 27 nations agree to this? Consider the suggested alternative to the EAW—the noble Lord, Lord Soley, has already touched on this—which Norway and Iceland had no alternative but to adopt because of course they are not member states. Paragraphs 129 to 133 of the report deal with this. After 13 years of negotiation, the agreement with Norway and Iceland is still not in force. In any event, it includes the objectionable option of a state party being allowed to refuse to extradite one of its own nationals. It also contains an exception for political offences. It may, in any event, require the non-EU state to be a member of Schengen. Finally, and in this event of course decisively, it would appear to require the non-EU state to submit to the ECJ jurisdiction.

In conclusion, this is an excellent report, which rightly suggests that we need desperately to retain the links that it deals with. It is fervently to be hoped that the Government will now digest the report thoroughly and reflect it fully when they come to determine their future negotiating position on these vital topics.

Investigatory Powers Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 11th July 2016 Lords Chamber

Although there is some debate over what the real costs are going to be to internet service providers, it is likely to be considerable. In his summing up of the debate on Second Reading, the noble and learned Lord, Lord Keen, said that he did not know where our estimate of a billion pounds had come from, but when we come to the discussion, we will go into detail about how we arrive at that figure. As I said on Second Reading, the creation and retention of internet connection records will create vast quantities of highly sensitive personal—

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

My Lords, I am grateful to the noble Lord for giving way. I ask whether I have completely lost the plot here. I thought this was the first group of amendments, Amendments 1, 2 and 3. I do not understand why we are ranging over the entire Bill.

[Lord Paddick]

My Lords, what I am trying to demonstrate here is to counter what the noble and learned Lord, Lord Keen, said in his letter, that the Bill complied with the 10 tests put forward by RUSI. I am simply indicating where we feel that the Bill is deficient.

Moving on, we share others’ concerns that the technical capability notices and national security notices, only enforceable against UK companies, could make British products and systems more vulnerable to illegal hacking. There could be a considerable competitive disadvantage to UK companies as a result.

We are concerned about the operation of the filter. As I said at Second Reading, it creates a virtual database, and the noble and learned Lord in his summing up—

--- Later in debate ---

[Lord Strasburger]

That is exactly what I was just doing.

I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s demand that privacy protections should form the backbone of the legislation around which these surveillance powers are built as exceptions to the privacy norm.

Clause 2 was the Government’s answer to the ISC’s demand, but it is incomplete and insufficient and needs to be seriously beefed up. The amendments in this group give full effect to the ISC’s reasonable requirement that privacy should be the backbone of the Bill by, among other things, incorporating the 10 tests devised by the Royal United Services Institute review. I commend these amendments to the House.

[Lord Brown of Eaton-under-Heywood]

I, for my part, am entirely content with Amendment 3 in the name of the noble Lord, Lord Janvrin. I marginally prefer it to Amendment 2. It may be doubted whether either is strictly necessary, but let us have the simpler one. With the greatest respect, I regard Amendment 1 as entirely superfluous. It unnecessarily overcomplicates things and in large part it overlaps with other provisions in the legislation. It just is not a good idea. It is all very well to treat this legislation with some element of scepticism, but, please, not cynicism. That is the way this is approached in that context.

[Baroness Buscombe (Con)]

My Lords, following on from what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, I think that, in respect of Amendment 1, it is necessary to stand back and remember and recognise that this has got to be practical. If a public authority were presented with a list including, “the rule of law”, “necessity”, “proportionality”, “the need for restraint”, “the need for effective oversight” and statements such as “multilateral collaboration”, it would probably end up being terrified and do nothing. As the noble and learned Lord, Lord Brown, said, this is all dealt with in the Bill. It is entirely otiose.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 10th May 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, the noble Lord, Lord Ramsbotham, made a powerful speech. I will say a word in response to it. I am sorry that the noble Lord thinks that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and I were focusing on the “periphery” last week and supporting a “fudge”, as he put it. Your Lordships need to focus on the noble Lord’s amendment. It provides that, after 28 days, there would be no possibility of detention of a person for immigration reasons other than in exceptional circumstances. Last week I found that not to be something that I could support and I still cannot support it, because a person can be detained only for the purpose of removal and only for a reasonable period for that purpose. There is nothing exceptional about it taking longer than 28 days to remove a person who has been detained for immigration reasons. There has to be discussion with the country to which the individual will be removed and persons being removed often do not co-operate with their removal. There is nothing exceptional about it taking longer than 28 days. Of course, the individual concerned is also entitled at any time to require a judicial assessment of whether it is appropriate for them to continue to be detained for immigration purposes. I am pleased that the Government have moved to a four-month period and I think that is the right result.

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

My Lords, I, too, support Motion A. I will confine myself to three comparatively brief points. First, as has been made plain, the Government have already moved from the earlier proposal of six months down to four. Yesterday, as those who have read the debate in the other place will know, there was barely a voice and no vote whatever against that proposal.

The noble Lord, Lord Ramsbotham, has few greater admirers than I in this Chamber but, as I suggested earlier, his amendment goes altogether too far. One defect is that it is internally inconsistent. I mentioned this on Report but did not think it necessary to do so in the last round of ping-pong, though I rather regret that now. On its face, it refers in new subsection (1) to detention under any of the relevant powers. These are defined in new subsection (6) and include two dealing with detention pending deportation. However, looking at new subsection (4) of Amendment 84, it does not apply in cases where the Secretary of State is determined that there will be deportation. This is an internal inconsistency.

I suggest that four months properly protects against any risk of what can seriously be called arbitrary detention. One must remember that it is a safeguard over and above the intrinsic ability of those who are detained to seek bail—a safeguard I acknowledge to be appropriate and necessary, not least in the case of those with mental health problems. The proposal in the amendment of the noble Lord, Lord Ramsbotham, that there should be exceptional circumstances to justify detention beyond 28 days, is unworkable. The Minister gave reasons and illustrations, as did the noble Lord, Lord Pannick.

A shorter period, as proposed by the noble Baroness, Lady Hamwee—of whom, again, I am a great admirer—is, frankly, impracticable. Tribunals are already hugely busy and overworked. They really must not be overwhelmed.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will not repeat all the arguments but, as a member of the all-party inquiry, I support Amendments A1 and A2. The Commons had only an hour yesterday. Quite understandably, most of it was spent teasing out the practical implications of my noble friend Lord Dubs’ amendment. I do not think we should read too much into the fact that not much was said about these amendments.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 21st March 2016 Lords Chamber

Will Her Majesty’s Government look at the criteria of vulnerability within the scheme? The criteria for vulnerability include women and girls at risk, refugees with disabilities, children and adolescents at risk and persons at risk due to their sexual orientation or gender identity but do not include one’s religion or lack of religion. I want to be clear that I am not asking for discrimination on the ground of faith. That would be wrong and inconsistent with being a Christian country. However, in the 1970s, the UK took in Ugandan Asians and did not thereby discriminate on the ground of race. But Idi Amin persecuted on the ground of race and so created vulnerability. IS is most definitely persecuting on the ground of faith and creating vulnerability. The scheme should be urgently amended to recognise this.

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

My Lords, I support this amendment but think it right to note that it would involve two radical changes in the existing legal framework. First, it would involve a High Court judge deciding—no doubt subject to appeal—whether a particular group is subject to genocide. Secondly, it would enable any member of such a group to claim asylum from abroad. I have no real objection to the first of those changes. I do not share the concerns of the noble Baroness, Lady Berridge. In fact, it seems to me hardly necessary in the present case for a judge to be involved at all, but it might be in some future case. On all the evidence we have heard, it is pretty clear that Daesh is indeed committing genocide. If the UK Government will not say so and will not refer the matter to the United Nations, then by all means let us legislate to allow a judge to do so, if that would serve a valuable purpose. It is not necessary to go as far as establishing a case of genocide to establish a right to asylum under the 1951 refugee convention. But, of course, a ruling that an asylum seeker is indeed a member of a group subject to genocide would certainly qualify them in spades for refugee status.

I suggest that the real challenge in this proposal is the second change it would involve—namely, that under it for the very first time asylum would be able to be claimed from abroad rather than, as at present, only if the asylum seeker has somehow managed by hook or by crook to reach the shores of this country. Plainly, this change would substantially increase the numbers able to claim asylum here, and who we would then be obliged to take in. One fears and suspects that many thousands are subject to the risk of genocide. Assuming they could get to a British mission overseas—indeed, it is probably sufficient to get their application for asylum lodged there—that would have to be assessed, and the critical question would presumably be whether they are members of the group at risk; that addresses the point of the noble Viscount, Lord Hailsham. If the claim succeeds, they, as refugees, would still need to get to the United Kingdom to claim sanctuary. One wonders who would arrange and achieve that. The UNHCR has been suggested, but that might involve certain logistical difficulties.

Is the sheer increase in the number of prospective asylum seekers a fatal objection to the proposal? That is the crucial question here. I am puzzled about the suggestion that those who succeed under this provision would fall within the cap of 20,000 who we are already committed to relocate over this Parliament. I cannot see how, or why, that should be required. However, the proposal is confined to those who are genuinely subject to the risk of genocide. That is, of itself, a manifestly limiting factor. Accordingly, this objection should not be regarded as fatal: we should pass this amendment.

[Lord Shinkwin (Con)]

My Lords, I support this amendment and the excellent speeches made by other noble Lords, particularly my noble friend Lord Forsyth. As we have heard, the Christians in Daesh-held territory are suffering indescribable persecution and slaughter on account of their belief in Jesus Christ. They are sacrificing their lives and suffering genocide for Christ’s sake. Yet we are not being called to make any sacrifice at all on their behalf. All your Lordships’ House is being asked to do today is bear witness to the truth than genocide is happening and to keep faith with these victims of genocide by empowering a High Court judge to determine whether a genocide is under way, and by requiring the Government to accelerate the resettlement requests of those fleeing such a genocide.

It may be almost impossible for us, as we sit in the splendour of this beautiful Chamber, to conceive of the enormity of the genocidal crimes being perpetrated thousands of miles away. It is possible that the only thing that we have in common with their situation right now is the colour of the luxurious red Benches on which we sit. It is also the colour of their blood. The amendment would help to ensure that it is not spilt in vain, that the extent of the genocide they are suffering is recognised for what it is, that refuge is given on account of it, and that the perpetrators, as we have already heard, will be punished specifically for genocide.

For Christians around the world, yesterday marked the start of Holy Week, the worst and yet the best week of Jesus’s life. By the end of it, he would be dead, yet he went to his death in full knowledge of the excruciating pain involved, because he chose to bear witness to the truth. We debate this amendment in full knowledge of the truth that genocide is being suffered, as I speak, in his holy name. We cannot stop it, but like him we can choose to bear witness to the truth.

So I say with sincere respect to my noble friend the Minister that that is why I support this amendment. I hope that many noble Lords will do likewise, united in proud defence of the freedom of conscience that surely we all cherish. Surely that is the very least we can do in the face of genocide.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 21st March 2016 Lords Chamber

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

My Lords, of course our hearts go out to unaccompanied children, especially the younger ones and particularly those under the age of 12—these are children who have somehow managed to find their way to an EU country. However, one thing rather concerns me about the provision as drafted, and it is this: ex hypothesi, the refugee children in other countries in Europe to whom this provision applies are already entitled to asylum in whichever EU country they already are. If we are to bring in some mandatory provision of this sort, for my part, I suggest that the requirement for them to be “refugees” be dropped. If the clause is restricted, say, to those under the age of 12 or to younger children, for them, frankly, the difference between being a refugee strictly entitled under the refugee convention and an economic migrant is vanishingly small.

[Lord Judd (Lab)]

My Lords, I have the good fortune to know my noble friend Lord Dubs personally as a great friend, and we have worked together on many issues. The thing about Alf—if I may refer to him colloquially, because I cannot think of him in any other way—is that he has never forgotten what happened to him and, throughout his life and his whole career, he has been guided by what action that demands of him as a member of society. This is not a one-off by my noble friend Lord Dubs; this is another indication of the man who has put this forward.

I have listened to the legal arguments and complexities that are again being raised. However, I believe unashamedly that from time to time in life, and in politics, there comes a moral imperative, and when there is a moral imperative it is not just to speak; it is to act. My noble friend Lord Dubs has given us an opportunity to act and give substance to our words.

However, this must be seen against the frightening background. In the world at the moment, there are 19.5 million refugees, which is around 2.9 million more than in 2013. Of those, 5.1 million are Palestinian refugees registered with UNRWA. Who is looking after these refugees? Who is hosting them? The overwhelming majority—86% of the world’s refugees—are cared for by developing countries that are desperately impoverished themselves, with many of their citizens not knowing what it is to live life as we live it. Think of that, and then think of this small action that we are being challenged to take today by my noble friend Lord Dubs. Beyond the refugees, there are of course all the internally displaced people—millions again.

This action gives hope, as the noble Lord, Lord Roberts, put it so eloquently. It is an indication of what, if we have any morality at all, that morality demands. It also means that we have to face up to the reality of the world. With climate change and all the conflict in the world, this problem will continue to grow. If we take this action, as I hope we do today, it must spur us on to consistent action as a nation in leading an international response to the global challenge that is increasing in size and complexity all the time.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 15th March 2016 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I will speak to my Amendments 84 and 85, and comment on government Amendment 86. Since I proposed to the Minister in Committee that the Bill should be temporarily withdrawn so that it could be redrafted to reflect the Government’s countless changes of mind during its passage and the recommendations of the reports and review they had commissioned, a further 59 government amendments have been added to the 250 that I mentioned at that time, and what was Clause 34 only three weeks ago is now Clause 59 in what has become a monster. I beg the Minister and his colleagues to consider their poor front-line officials, who have to interpret and administer this mass of micromanagement, on top of all the other legislation that is being introduced, and ask themselves whether they would like to be in their position.

Looking through the proceedings of the cross-party committee on immigration detention, of which I and the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, were members, and the evidence given that influenced our recommendation that it should be subject to a 28-day limit, I well remember my noble and learned friend Lord Lloyd of Berwick—sadly now retired from the House—pointing out that such detention was administrative, not legal, since it was imposed by Home Office officials and not in a court of law. In addition, the United Kingdom was an outlier, both within the European Union and elsewhere, in not having a limit on the length of time that a potential immigrant could be detained. It was also pointed out to us that there was no correlation between the length of detention and the likelihood of the Government being able to effect removal. Indeed, the opposite was true. Our recommendation was endorsed by the House of Commons in a detailed debate on our report of 10 September 2015.

Passionate cross-party opposition to limitless detention was displayed at all stages of the passage of the Bill through the other place. Indeed, the shadow Immigration Minister, Sir Keir Starmer MP, quoting the all-party report, said that,

“the United Kingdom has a proud tradition of upholding justice and the right to liberty. However, the continued use of indefinite detention puts this proud tradition at risk”.—[Official Report, Commons, 1/12/15; col. 186.]

However, all attempts to pass an amendment failed, thanks to the Committee system in the other place, which has a built-in government majority of nine to seven in a Committee of 16. I therefore tabled my amendment in the spirit of trying to restore some national pride.

As far as Amendment 84 is concerned, I thank the Minister for, and refer him to, his 11-page letter of 1 March to the noble Lord, Lord Rosser, which he copied to others, and his two-pager to me of 11 March. In the former, he states that individuals can challenge Home Office decisions by way of judicial review, and that legal advice is available to those contained in immigration removal centres. That is rather like the Home Office’s invariable assurance that although conditions in immigration centres may have been as bad as those reported by inspectors, all is now sweetness and light—until disproved at the next inspection. Whatever is wishfully thought by officials simply is not so in practice.

Of course, detainees can in theory challenge Home Office decisions, but new arrivals must wait for a week before they are allowed to apply for bail, and concerns have frequently been expressed about failures of centre staff adequately to explain the existence of and procedure for accessing the necessary procedures to detainees. In recent years, the Home Office has repeatedly been found to have unlawfully detained individuals for protracted periods. For example, in 2014, the High Court found the 11-month detention of a Zimbabwean woman seeking to join her husband in the United Kingdom under refugee family reunion rules to be in violation of both Articles 3 and 5 of the Human Rights Act. Between 2011 and 2014, £15 million was paid out in compensation for unlawful detention.

While on the subject of the Home Office, I repeat to the Minister what I have said many times before. The culture of disbelief that pervades the Home Office, allied to the appalling standard of its casework over the years—witnessed by the staggeringly high number of successful appeals against its decisions—and the appalling quality of its communication with applicants, gives me no confidence that it is capable of carrying out what the Government apparently wish. Nothing has been done to improve the situation for years.

The Minister now tells us—again in his letter of 1 March—that the Government propose to implement new approaches to case management and, by the summer, to appoint a separate gatekeeper team which will approve decisions about who enters immigration detention, scrutinise prospects and speed of removal and assess vulnerability. Furthermore, by the autumn, a new team will build greater expertise on making detention decisions and ensuring that appropriate safeguards are in place so that, by the end of the year, caseworkers will focus on progression towards a person’s return and those detained will have both better access to information about their case and greater interaction with casework staff in immigration removal centres. Furthermore, after 14 years of inaction, the short-term holding facility rules are to be referred to an eight-week consultation.

Familiarity is said to breed contempt. I have to say to the House that, based on almost 20 years of familiarity with the current immigration system, I regard all that as largely a figment of Home Office imagination.

Amendment 84 is designed to ensure that there is legal oversight of the detention of anyone detained by administrative rather than legal process. I acknowledge the thoughts of my noble and learned friend Lord Brown of Eaton-under-Heywood about whether 28 days is long enough and fears that the First-tier Tribunal might be swamped with appeals. I also understand his concern about new subsection (4) in the amendment, but if the Home Office is working as the Minister sets out in his 1 March letter, there should be little need to detain anyone for longer than 28 days. Should my amendment be agreed, such technical issues can be corrected by the Government at Third Reading.

Amendment 85 expands on the list of those considered to be vulnerable in the Minister’s letter of 1 March and those who qualify for the guidance that the Secretary of State is required to lay before Parliament under government Amendment 86. On this issue, a six-month study by the Helen Bamber Foundation carried out between 3 July last year and 3 January this year showed that, out of 371 people referred to it, 84% had significant indicators of vulnerability, including torture and human trafficking, that had been routinely ignored by the Home Office. I suggest that the fact that such an unacceptable rate of failure to identify vulnerability continues, despite the suspension of the detained fast-track process in July 2015, demonstrates that, in the Home Office-run system, the culture of disbelief that I mentioned earlier still overrides significant indicators.

This all adds up to my firm belief, arrived at after many salutary experiences over almost 20 years, that the way in which immigration detention is managed and conducted is in urgent need of improvement. Judging by the Minister’s letter, the Government seem to have reached that conclusion as well. The Bill should present an ideal opportunity for such improvement to be codified, and I suggest that that process should start with legal oversight of administratively awarded detention, but with my wider consideration in mind. I beg to move.

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

My Lords, I shall speak only to Amendment 84, not Amendments 85 and 86, which concern the detention of vulnerable persons. Far and away the most striking feature of Amendment 84 is proposed new subsection (4), which would disapply the time limit in any case where the detainee has been sentenced to imprisonment for 12 months or more, or is someone whom it is proposed to deport. The fact is that those are the vast majority of cases involving prolonged detention. Frankly, that provision emasculates the whole idea of a time limit.

None of the previous campaigns or arguments in favour of a time limit has suggested such a striking restriction on its scope; no such suggestion was advanced in Committee; and no other country has gone down this road. Small wonder that in its briefing on the amendment, the Equality and Human Rights Commission does not support subsection (4); nor does the organisation Bail for Immigration Detainees, to which I spoke at some length on the telephone this morning. It says that, with this restriction, it would regard the amendment as essentially pointless.

I suggest that subsection (4) is inconsistent with the definition of “relevant powers” in subsection (6), because those powers as identified in paragraphs (b) and (d) refer to detention pending deportation powers: detention which, under subsection (4), would not be subject to the limit anyway. I therefore propose to address the amendment for all the world as if subsection (4) was not part of it. Let me make plain at this stage that, even then, I shall conclude by offering limited support for the imposition of a time limit—certainly less opposition than I have expressed hitherto.

At Second Reading, I spoke against the introduction of fixed time limits for immigration detention. I pointed to the very real difficulties of such limits in the case of those whom we are trying to remove, who exercise remarkable persistence and ingenuity in their efforts to remain here. As the Minister made plain in answer to a Question a fortnight ago arising from the Chief Inspector of Prisons’ report on the immigration removal centre at Harmondsworth, the overwhelming majority of the 2,700 detainees there have committed immigration offences, 40% being foreign national offenders. Those figures are higher still if you consider those detainees who have been there for more than four months—or, indeed, more than 28 days. They are, as the Minister said, working very hard to avoid their removal, and trying to frustrate the system.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 9th March 2016 Lords Chamber

[Lord Green of Deddington (CB)]

My Lords, I will contribute a slightly wider point to the discussion. It is surely clear to all of us that a substantial number of people would like to come to this country and work illegally. As the Home Office will confirm, nearly half of those who apply for asylum have previously been working illegally and apply only when discovered. We have literally thousands of people queueing up in Calais wanting to get into Britain and work illegally. They know perfectly well that they will be illegal when they get here but they come because they want to work and send money home. Understandable though that may be, it is surely essential that there should be a disincentive to those people from making that attempt. The obvious thing is to make it illegal. There is no way that they will understand the intricacies of British law—indeed, the deputy mayor of Calais does not understand them—so it must be made illegal. If the Government can usefully adjust the law in terms of prosecutions, so be it, but let us keep our eye on the ball. There are literally thousands, if not many thousands, who would like to come and do this and they should be deterred.

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

My Lords, I associate myself with what the noble Lord, Lord Green, has just said. Clause 32 would essentially criminalise knowingly working illegally. I find it difficult to suppose that there would be much if anything in the way of the successful recovery of illegal earnings under POCA, and I can hardly think that that is the real object that underlies the proposed introduction of this new offence. Surely the real question is whether the suggested benefit indicated by the noble Lord, Lord Green—of adding this explicit new offence to the altogether more abstract existing offence of working in breach of immigration conditions, to discourage people smugglers by cancelling the message that they presently give to aspiring immigrants; namely, that there is no such existing offence here—outweighs the suggested risk of the exploitation of such workers by henceforth making it more likely that they will keep their illegal working secret. My judgment is that it does outweigh it. Therefore I support the existing clause as amended.

[Lord Bates]

My Lords, I guess that the noble Lord, Lord Rosser, is regretting raising the absence of legal advice on this point. What is so wonderful about this place is that, when we look for legal advice on our proceedings, up pop a former President of the Supreme Court, a former Lord Justice of Appeal and a former Lord Chancellor. One of the great advantages of this House is that we can draw on such expertise. I am particularly grateful to the noble and learned Lords for their contributions in this regard.

In the spirit in which my noble friend Lord Deben approached this matter, which is the spirit in which we approach the Bill, we looked at whether the “reasonable excuse” amendment would be able to hold up and work. The advice that came back was that it was thought that it would not work; none the less, in Committee the noble Lord, Lord Rosser, highlighted a number of cases in which people had been brought to this country believing that they had a legal right to be here. They had been told that by an unscrupulous employer but it then became manifest that they did not have that legal right. We agreed that there ought to be some defence and have brought that forward in Amendment 48 with the words,

“knows or has reasonable cause to believe”.

I shall deal with a couple of the points that have been raised. The noble Baronesses, Lady Hamwee, Lady Ludford and Lady Lister, rightly were all concerned about the impact on potential victims of trafficking and modern-day slavery. The suggestion that the Modern Slavery Act defence applies only after a charge is not correct, as that does not reflect the operational reality. We do not accept that the defence protects victims only after arrest—that is not the case. Law enforcement officers do not pursue investigations where a defence is clearly established. For example, it is a defence to a charge of assault if a person acts in self-defence and uses reasonable force. If officers establish that at the scene of an incident, they will not arrest a person, as to do so would be a waste of resources, as the noble Baronesses rightly highlighted.

I turn to how the clause on illegal workers will work. While many illegal workers do not earn significant sums, unfortunately some, particularly the self-employed, benefit from current loopholes in the law and make a good living out of being in the UK illegally. I am sure that the point that the noble Lord, Lord Green of Deddington, raised—about those who come here and move on to asylum—will be discussed when we reach a later clause concerning the ability to work while claiming asylum. The Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2006 specifies that only cash sums of £1,000 and above may be seized. This means that the illegal worker must possess cash amounting to at least £1,000 before proceeds of crime action and cash-seizing powers may be used in connection with the new legal offence. We believe that that threshold, as well as closing a loophole, and the new mens rea defence, which is required to be proved in the court for a successful prosecution to occur, give the right balance and the right defence to ensure that the types of individuals whom the noble Baronesses, Lady Lister and Lady Hamwee, and the noble Lord, Lord Rosser, referred to are not caught inadvertently by this legislation.

--- Later in debate ---

[Lord Roberts of Llandudno (LD)]

My Lords, I am grateful to the noble Lords, Lord Rosser and Lord Alton, and my noble friend Lady Hamwee. I see this whole issue as one with far wider implications than just allowing asylum seekers to work. Sometimes I get quite depressed thinking about the legacy we will hand over to our children and grandchildren. Is it a legacy where every hope has been withdrawn, or one in which there is hope even though there are difficulties?

I see this as an opportunity to extend some hope to people who are here often in desperate circumstances. It has already been mentioned that trying to exist on £36 a week is not easy. People who want to work, to contribute to the taxation of the UK, and to support their families, or who have skills that they would love to develop and extend, are people we should encourage. When the time comes—I hope we will test the feeling of the House—I ask the House to say, “Yes, we’re going to provide a beacon of hope. We’re not going to lift another drawbridge or make it more difficult”. We know that it is difficult, but I think, and I am not often a pessimist, that, in the years to come, the problems of the present day—migration, destitution, poverty and everything else—will be increased. This is our chance as a House to say that we are trying to help people and somehow provide a legacy that has at least some hope attached to it. It gives me terrific pleasure to support the amendment in the name of the noble Lord, Lord Alton.

[Lord Brown of Eaton-under-Heywood]

My Lords, once again there is a balance to be struck here. On one side is the disadvantage of permitting asylum seekers to work after six months. Contrary to what the noble Lord, Lord Alton, suggested, it seems inevitable that some aspiring immigrants, at least, would be encouraged by such a provision to apply for asylum and, perhaps, to prolong the process by making what they then assert to be a fresh claim. On the other side are the benefits of enabling self-support, not to mention self-respect, by allowing this work after six months—indeed, all the various benefits so eloquently outlined already in this short debate by the noble Lords, Lord Alton and Lord Rosser, and the noble Baroness, Lady Hamwee.

Here, contrary to the view I expressed on the previous issue, the balance seems to fall in favour of the amendment. Furthermore, if, as I hope, one consequence of passing the amendment were the further speeding up of the decision-making process, that would be a most welcome additional benefit. Accordingly, in this instance I respectfully support the amendment.

[Baroness Lister of Burtersett]

My Lords, I support Amendment 57. I will not repeat all the arguments I made in Committee in support of this most basic of civil rights—the right to be able to undertake paid work. I simply want to respond to a couple of the arguments that the noble Lord, Lord Ashton of Hyde, made in response in Committee.

As the noble Lord, Lord Alton, noted in so ably moving the amendment, the main argument seemed to be our old friend, the pull factor, which dominates policy-making in this area. Since that debate, my attention has been drawn to the only piece of research I am aware of that has explored with individual asylum seekers and refugees the factors that informed their decision to seek asylum in the UK. The report Chance or Choice? by Heaven Crawley was published a few years ago by the Refugee Council. I will quote from it in the interests of evidence-based policy-making. Her broad finding was that, contrary to the assumptions on which policy is premised,

“the choices asylum seekers make are rarely the outcome of a rational decision making process in which individuals have full knowledge of all the alternatives and weigh them in some conscious process designed to maximise returns”.

Professor Crawley found no evidence from this or other research that work acts as a pull factor. Instead, she concludes that,

“the policy change introduced nearly a decade ago to prevent asylum seekers from working whilst their claim is determined has had no measurable impact on the level of applications received”.

The report said of asylum seekers,

“the inability to work was the biggest difficulty they faced in rebuilding their lives. Lack of access to work has psychological and social as well as economic consequences”.

It quoted a woman from Zimbabwe who said:

“Sometimes I just cry. It’s like I am worthless, like I am just this piece of junk”.

Another said:

“My mind has gone rusty. I am not able to look at a meaningful life anymore. I look at it and I think, oh what a wasted life”.

It is terrible that people are having to feel this.

The noble Lord, Lord Alton, cited a range of cross-national evidence that does not support the argument that enabling people to work acts as a pull factor. No doubt the Minister will respond with the other argument given twice in Committee:

“It is important that we protect the resident labour market for those lawfully present in the UK”.—[Official Report, 20/1/16; col. 850.]

But asylum seekers are lawfully present until they are deemed otherwise. To suggest they are not plays into the popular tendency to conflate asylum seekers with undocumented economic migrants.

This leads to my final point. A number of noble Lords and organisations outside have expressed the fear that by denying asylum seekers access to legitimate paid work, sheer need and desperation will push them into the shadow economy where they are prey to exploitation. I raised earlier my concerns that they could now also be caught by Clause 32, which will criminalise them.

To conclude, like the noble Lord, Lord Alton, I do not believe that the Government have made their case that current policy is, to quote the noble Lord, Lord Ashton of Hyde, “fair and proportionate”. On the contrary, it is unfair and disproportionate when compared with the position in most other EU countries, and in its short-term and long-term impact on asylum seekers and refugees whose subsequent integration into British society is impeded by it, as we have already heard. As Ian Birrell, former speech writer for the Prime Minister, wrote earlier this week:

“The key is to let refugees work legitimately, so they can build a fresh start—wherever they are. After all, what human being wants life trapped in limbo … Refugees may have escaped hell, but that does not mean we force them into purgatory”.

It feels as if, too often, we do just that. This amendment would help asylum seekers out of the purgatory of enforced idleness and impoverishment.

Riot Compensation Bill

Lord Brown of Eaton-under-Heywood Excerpts

Friday 26th February 2016 Lords Chamber

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

My Lords, as ever when I find myself following the noble Lord, Lord Pannick, in a debate in your Lordships’ House, I profoundly regret ever having put my name down in the first place. Either he will have said everything that one had thought worth saying or he will have exploded in advance what one had supposed had been the merits of one’s own position. Certainly, from a historical point of view my speech would have been a little more interesting had he not already shot every one of my foxes.

I cannot pretend to any particular expertise in this area of the law, but I have been intrigued by some of the litigation which followed the 2011 riots. Indeed, I have the full 36-page transcript of the Court of Appeal judgment in the Mitsui Sumitomo case in which the noble Lord, Lord Pannick, appeared for the Mayor of London in that court. It makes extremely interesting reading, at any rate for lawyers.

Having noted the basic curiosity under the 1886 Act, and indeed before that in the 1714 Act, that the community as a whole is under a strict liability to pay compensation for the consequences of a riot, whereas of course ordinarily, generally speaking, the police, as the noble Lord, Lord Pannick, has made plain, are under no such tortious liability, even in cases where they can be shown to have been at fault, the court quoted the celebrated Lord Mansfield’s explanation, given in 1776. The noble Lord, Lord Pannick, has already referred to this but I think that Lord Mansfield is worth a quotation, so I quote him:

“If the act had never been made, the trespassers would have been liable to answer for the whole injury in damages. To encourage people to resist persons thus riotously assembled, and to reward those, who, by doing their duty, shall have incurred their resentment, the same law has made a further provision, that as the trespassers are to be hanged, the country shall pay the damages: And this, by way of inducement to the inhabitants to be active in suppressing such riots, which it is their duty to do: and which being thus made their interest too, they are more likely to execute. This is the great principle of the law, that the inhabitants shall be in the nature of sureties for one another. It is a very ancient principle; as old as the institution of the decennaries by Alfred, whereby the whole neighbourhood or tithing of freemen were mutually pledges for each other’s good behaviour. The same principle obtains in the statutes of hue and cry. It is the principle here”.

The central reason why I refer to the judgment, besides that pleasing piece of historical elegance, is that it overturned the first-instance decision in that case about the range of allowable compensation in these cases. Unlike the trial judge, as the noble Lord, Lord Pannick, said, the Court of Appeal held that the claimants were entitled to all their losses, which include consequential losses, loss of profits, loss of rent and so forth. Displeased, the Mayor of London, represented by the noble Lord, Lord Pannick, failed to get leave of appeal from the Court of Appeal but got it directly from the Supreme Court. As the noble Lord has said, the judgment of that court, the argument having concluded, is now awaited.

With Clause 8, this Bill would pre-empt that decision, obviously not in respect of cases past, including that particular one, but for future cases. It would provide in Section 8(2) and (3), as your Lordships have already noted, that direct loss only is to be recoverable except in the case of temporary accommodation required by those whose houses are rendered uninhabitable. It is subject to the cap of £1 million, designed, reasonably and sensibly, to ensure that it is really the smaller people, individual householders, shop owners and so forth—the uninsured, for the most part—who will be benefited by this legislation, rather than the large insurance companies and those who can afford the fees of the noble Lord, Lord Pannick, who, as he himself points out, will already have obtained premium payments to cover these selfsame losses.

Generally speaking, I find myself rather more supportive of the Bill than it would appear the noble Lord, Lord Pannick, is. It introduces a number of clarifications and improvements. True, as all too often these days, rather more than one would wish is left to secondary legislation, regulation and so forth. It may be that one could improve on those aspects in the course of Committee.

It is of course true that Lord Mansfield’s justification for this particular type of compensation now seems perhaps a little dated; trespassers are no longer removed from the possibility of paying compensation by being hanged. The fact is, though, that there remains, certainly for the uninsured and the smaller people who suffer from these riots, some wish on the part of the wider public that these outrageous incidents of lawlessness should be compensated beyond those in the way of ordinary day-to-day criminality. It is strongly to be hoped, of course, that this Act will seldom, if ever, need to be invoked in future, but if it is I am confident that once it has been through Committee here, it will serve us better than its now obviously somewhat archaic ancestor. In general terms, I wish the Bill well as it progresses further.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 22nd December 2015 Lords Chamber

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

My Lords, this 162-page Bill ranges obviously fairly widely over immigration law. Today, therefore, one needs to be selective. The two matters I have chosen for brief comment are, first, immigration detention and, secondly—if I have time—support for failed asylum seekers. Both have, of course, provoked a great deal of controversy and, indeed, litigation down the years—in much of which litigation I confess that I have been involved.

Immigration detention is the subject of Clause 32 and, more particularly, Schedule 7, which are intended to regulate the granting of immigration bail for all those detained under the several different powers in earlier, pre-existing immigration legislation. As to the term “immigration bail”, I respectfully ask whether it would really be of assistance to anybody to describe it instead as release from immigration detention.

The two basic concerns that arise in this area are, first, the conditions in which those detained are held and, secondly, the length of time for which they are held. The physical conditions of detention are, as is well known, the subject of an ongoing review by a former ombudsman, Mr Stephen Shaw. I think we are promised that report by Committee. Therefore, I shall say nothing about that aspect now.

However, I want to say a word or two about the length of detention. There are two basically different circumstances in which people are detained under the legislation: first, on initial application for asylum and, secondly, when, much further down the line, it is sought to remove people whose rights of whatever sort have expired and it is proposed that they finally be deported. These are very different situations. Speedy decision-making—that is, when it is thought likely that a decision one way or the other on an initial application can be comparatively speedily arrived at—is facilitated by keeping those who make their claims readily available for interview and so forth during the processing of the individual claims. This is known as the Detained Fast-Track—or DFT—operation and has itself spawned a number of legal challenges. It was considered in the APPG report on immigration detention. However, that report concluded that there is, indeed, a need for such a procedure, although it is only fair to say that the report expressed some concern that,

“the focus is on detention rather than making quick, high quality decisions”.

The need was recognised that, in these cases, speed is desirable for both the claimants themselves and the many others who are waiting in the queue to have their applications decided.

The other, very different, situation in which people are detained, sometimes for substantially longer periods, is where asylum seekers—or other categories of immigrants—have exhausted all their claims. They have no further appeal rights or rights to remain and are detained pending their proposed removal from the country. These cases present altogether greater difficulties, certainly in terms of introducing any fixed limit to the permissible length of time for which they can be held. Although, on the face of it, the statutory power to detain pending removal is unlimited, 30 years of case law, starting with a decision by the noble and learned Lord, Lord Woolf, then Mr Justice Woolf, have established that it is not. It exists only so long as there is a reasonable prospect of removal within a reasonable time. These questions are kept under review and are subject, ultimately, to judicial scrutiny and decision.

What is reasonable inevitably depends on the facts of each case and the sort of considerations in play. These obviously include factors such as the risk of the person offending or, often, reoffending. Many of those detained for deportation are FNPs—foreign national prisoners—who are completing their sentences of imprisonment here. There is also the risk of absconding —going to ground and thwarting all attempts to enforce immigration control. Unsurprisingly, all these considerations are listed in paragraph 3(2) of Schedule 7, among the various matters to which regard must be had in deciding whether bail should be granted. Many participants in this debate have urged and will urge, benevolently, for fixed limits—sometimes as little as 28 days—to immigration detention. I say to those noble Lords: do not underestimate the ingenuity and persistence of many of those who seek to defeat immigration controls. Time and again, down the years, the system has been cleverly played, often by those who are least deserving of our sympathies.

In the present edition of one of the standard textbooks on immigration law, the chapter on detention and bail extends to 96 dense pages and endless footnotes. A case on this topic in the Supreme Court in 2011, in which I sat as one of nine justices, stretched to 115 pages of judgments. This is a difficult area of the law and I respectfully suggest that we should not rush to impose some limit. I recognise that, under the EU returns directive—from which the UK opted out—most EU countries have a time limit of under 18 months, some substantially shorter. I would certainly be interested to know how this is achieved; perhaps the Minister can help us. I rather suspect it is because other countries are more ruthless than we have been, over the years, in refusing to allow appeals and challenges against deportation. I am no supporter of what has been called today “indefinite administrative detention” but nor would I support releasing back onto our streets foreign national criminals who have managed to stretch their fight against deportation beyond some arbitrary time limit.

I turn, inevitably and more briefly, to support for failed asylum seekers, covered in Schedules 8 and 9. I hope to be reassured by the Minister that, one way or another, by reference to either local or central government—much of the dispute down the years has been about which of those two bodies is responsible for keeping destitute asylum seekers off our streets—we shall not again be faced, as we have been over the years, with certain immigration regimes which have allowed destitute asylum seekers unsupported on the streets. Some 20 years ago, in the Court of Appeal, I cited the Lord Chief Justice, Lord Ellenborough, from a 200 year-old case:

“As to there being no obligation for maintaining poor foreigners … the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving”.

Surely that holds no less true today.

Those are the only matters on which I will address the House today. These and a number of others will need to be more carefully explored in Committee, when we have more time.