Immigration Bill
Lord Brown of Eaton-under-Heywood Excerpts(10 years, 7 months ago)
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Lord Avebury
My Lords, I congratulate my noble friend on moving this important amendment, based on one of the recommendations of the Joint Committee on Human Rights, of which she is a distinguished member.
Clause 15 removes the right of appeal to the tribunal from all immigration decisions except those dealing with protection and human rights. In those remaining cases, new Section 85(5) of the Nationality, Immigration and Asylum Act, inserted by Clause 15, requires the Secretary of State’s consent for a new matter to be raised before the tribunal, as it frequently is because new evidence comes to light following the original decision; my noble friend has given examples of how this can happen. We also heard from my noble friend that in the opinion of the JCHR it should be for the tribunal itself to decide whether the new matter is within its jurisdiction and, if so, to consider it on appeal, with the Secretary of State responding to it as she normally does.
It is not suggested that the tribunal has allowed the abuse of its own process in the past, or that it has treated the Secretary of State unfairly, or that the existing process is inefficient. What can happen not infrequently, however, is that the Secretary of State withdraws her decision, saying that she wishes to reconsider the case, and then returns several months later with a new decision very similar to the previous one, wasting the time and money of both the appellant and the tribunal. The Tribunal Procedure Committee is consulting on a rule for the First-tier Tribunal similar to the one that prevents the Secretary of State from putting a stop to an appeal in the Upper Tribunal by withdrawing her decision. The Immigration Law Practitioners’ Association suspects that the subsection we seek to amend is designed to thwart such a change.
My noble friend referred to the Constitution Committee, which has drawn the attention of your Lordships to what it and the JCHR both consider to be a serious question in relation to Clause 15(5): whether it undermines the common law right of access to justice. The Government’s case is that appellants may be able to get to the court by way of judicial review, and no doubt some will do so in spite of the financial obstacles created by the abolition of legal aid. However, this conditional route does not satisfy the common law, and that will no doubt be tested in the courts. The judicial review cases will be more expensive and take longer than appeals, even though it will now be the tribunal that hears them because Treasury solicitors and counsel will have to be employed; they are very expensive people. Have the Government made any estimate of the number of JR cases and the reduction in the savings that were otherwise expected arising from the JR cases that were otherwise to be heard?
In the remaining cases, now to be dealt with via administrative review, a smaller proportion of those concerned will be successful than if they had been able to appeal. That is the whole point of the exercise: not to simplify the way the cases are handled but getting to the same outcomes.
Like my noble friend, I object to a proposal which gives the Executive power to intervene in the procedures of a court of law, and particularly so when it is one of the parties to the case in question. I hope that the Government will think again.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, having spent some five years as Treasury counsel, periodically attempting to remove illegal immigrants, and then having spent some decades as a judge lamenting the absurdly over-elaborate appeals systems under which those resisting removal could string out a whole series of appeals for years on end, I can readily see—to use an inelegant colloquialism—where the Government are coming from in Clause 15(5). It is now some dozen years since the so-called one-stop appeal was sought to be introduced. Now, of course, the Government are intent, yet more fundamentally, on substituting in large part administrative reviews for appeals in all but the comparatively few cases where truly basic freedoms are at issue: refugee status, humanitarian protection and human rights.
For my part, I am not against this general reduction in appeal rights, although I may not go quite so far as to vote against the next proposed amendment, which is to remove the entirety of Clause 15. Nor am I against, as I made plain in Committee, what is now Clause 18, which to some extent may be expected to constrain the court’s readiness to allow Article 8 considerations to frustrate attempts to remove foreign criminals and others who are here in violation of immigration controls. I interpolate only that Clause 18 will of course be informed by Amendment 58, tabled by the Minister and the noble Earl, Lord Listowel, to safeguard the welfare of children.
I am, however, strongly against Clause 15(5), to which this amendment goes. This provision seems to me to represent a bridge too far. The noble Baroness, Lady Berridge, has already clearly explained the basic objections to this provision and has noted that serious reservations have been expressed about it: expressed twice now by the Joint Committee on Human Rights and yet more recently by the Select Committee on the Constitution. It would not be helpful for me to restate all these objections in detail. Suffice it to say that it seems intrinsically objectionable for the Government, one of the parties before the tribunal on the appeal, themselves to have the last word with regard to what the tribunal may or may not consider.
By all means let the Government object to a new ground of appeal or some new reason for the appellant seeking to stay if they are genuinely unable to deal with it or, indeed, if they are genuinely unable to reach and declare their own decision on it by the time it is raised. Indeed, the tribunal may well hold that the Government are entitled to an adjournment if, in truth, they are prejudiced by the point being taken late. However, it is quite another thing to say, as Clause 15(5) does, that the Government can deny the tribunal the right to deal with a new matter on the appeal before it, and thus force the appellant—assuming that he wishes to pursue the point—to start all over again, with all the delay and, as we have heard, the prohibitive expense that that would necessarily involve. That, I respectfully repeat, goes altogether too far. Your Lordships should prefer instead wording which—if not here in perfect formulation—is in some way akin to that here proposed, which, heaven knows, is a modest enough power to confer on the tribunal itself.
Immigration Bill
Lord Brown of Eaton-under-Heywood Excerpts(10 years, 8 months ago)
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Lord Macdonald of River Glaven
My Lords, if Clause 60 operates in accordance with the Government’s intentions, it is bound to increase statelessness in the world. The noble Baroness, Lady Lister, has already reminded the Committee of the words spoken by Hannah Arendt many years ago, that statelessness deprives people of the “right to have rights”. It brings about a bleak, hopeless status, or rather a complete lack of status, that the British Government should have no role in encouraging, first, because of the positively terminal impact that the imposition of statelessness is bound to have on the ability of the rightless to function in a way that is even remotely human in the modern world and, secondly, because it is clear that such an imposition as a policy measure can have no sensible part in a co-ordinated international effort to combat security threats. In fact, it appears to be the antithesis of such an effort, even in circumstances where it is precisely co-ordinated international effort that we need.
In fact, the unilateral imposition of statelessness is very likely to be directly unhelpful to those efforts because it carries with it the very real risk of breaching the United Kingdom’s international obligations to a country which has admitted a person on the strength of their lawful possession of a United Kingdom passport. Of course, such a country would absolutely have the right to return an individual directly to the United Kingdom, and what then? As the JCHR has observed, the United Kingdom would appear to have no absolute right under international law to require other states to accept its outcasts. In my view, therefore, this proposal is not only ugly in the sense identified so many years ago by Hannah Arendt; it not only associates the United Kingdom with a policy beloved of the world’s worst regimes during the 20th century; but it threatens illegal and procedural quagmire hardly compatible with the comity of nations, still less with solidarity between free countries in the face of terrorism.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, have a fundamental problem with this clause. It has been suggested that it was added late to the Bill and designed to overcome the Government’s defeat in Al-Jedda, which was decided by the Supreme Court just last October, but in fact Clause 60 goes substantially further than merely reversing that decision.
Anti-social Behaviour, Crime and Policing Bill
Lord Brown of Eaton-under-Heywood Excerpts(11 years ago)
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Lord Hope of Craighead
I come back briefly to the point about discretion. Of course it is right that the court will have discretion as to whether to grant an injunction. In the case of an application made without notice, the clause is perfectly clear; it gives wide discretion to the court as to what to do. My concern is that if the court decides to make an order, where is its discretion if you remove the provision in Section 49 to restrict the publicity that is given to it? It is that element of discretion that I think concerns the noble Lord, Lord Ramsbotham, and the noble Baroness. There are two discretions here. One is certainly there, very properly, in the way that the whole of Part 1 is drafted as to whether orders are to be made. It is the particular point about the discretion as to whether publicity should be given that is of concern.
Lord Brown of Eaton-under-Heywood (Non-Afl)
My attention is drawn by my noble and learned friend Lord Walker to paragraph 123 of the Explanatory Notes, which indicates that, even though you are getting rid of Section 49, you are left with the discretion under Section 39 of the same Act. Paragraph 123 states:
“However, section 39 of that Act does apply to these proceeding and gives the court the discretion to restrict the publication of certain information in order to protect the identity of the child or young person, for example: his or her name; address; school, etc”.
Therefore, with great respect to the Minister, his answer lies in Section 39.
Anti-social Behaviour, Crime and Policing Bill
Lord Brown of Eaton-under-Heywood Excerpts(11 years ago)
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Lord Brown of Eaton-under-Heywood (Non-Afl)
My Lords, I propose to focus on just one clause in this lengthy Bill. I refer to Clause 151, in Part 13, concerning compensation for miscarriages of justice. Let me make plain at the outset that far from opposing this provision, as a great majority of those who have spoken about it today appear to do, I support it although, as I shall shortly explain, I could accept a slight modification to it, a modest dilution of its effect. Instead of the person seeking compensation having to prove his innocence beyond reasonable doubt—that is the criminal standard of proof for guilt to be established—it may be thought preferable that he need establish innocence only on the balance of probabilities. But I believe that establish his innocence he must, not of course, to have his conviction set aside and to go free, but to secure monetary compensation.
Let me explain why I support the proposal and believe that, contrary to the suggestion of the Joint Committee on Human Rights that this offends against the human rights convention, it is entirely compatible with the presumption of innocence. I should perhaps say at this stage that in the Supreme Court case of Adams, which was decided two or three years ago and has already been mentioned more than once today, I was in the minority of four to five—we sat as a court of nine justices. Clause 151 appears designed, essentially, to give effect to our minority view. I am not concerned here simply to refight old battles, but rather to support a provision which to my mind would not only restore clarity and simplicity in this area but reduce the number of occasions when large sums of money—sometimes they are very large indeed, up to £1 million—would otherwise fall to be paid out to those who, albeit that their criminal convictions have been overturned as unsafe, are nevertheless highly likely in fact to have committed the offences for which they are now seeking compensation.
My concern thus appears to go rather wider than what the Minister, in opening this debate, suggested is the Government’s concern to clarify the law and reduce the number of misconceived claims and the expense of contesting them. I readily acknowledge that there can be few ordeals in life more awful than being wrongfully convicted and imprisoned, sometimes for years, for a crime which one has not committed. At first blush, one’s instinct is to say that anyone in that position ought without more ado to be entitled to compensation for his ordeal and that that should be so in all cases in which the initial conviction is overturned. That is, however, very far from the position, and I think that nobody is suggesting that that should be the position. Certainly it is not necessary, as the underlying section here, the compensation section in the Criminal Justice Act 1988, seeks to do, to give effect to our international obligations under the International Covenant on Civil and Political Rights.
On the contrary, it must be recognised that the whole compensation scheme applies only to a narrow and exceptional group of cases in which convictions are quashed. There is no right to compensation unless the appeal was brought out of time. Sometimes that is a matter of chance—for example, if a lawyer has missed the time limit. No right to compensation arises unless the appeal succeeds on the ground of a new or newly discovered fact, for the previous nondisclosure of which the appellant is in no way responsible. No right to compensation exists unless the new fact shows beyond reasonable doubt that there has been a miscarriage of justice. As the international covenant provides, the claimant has to show conclusively that there has been a miscarriage of justice.
No one suggests that all those whose convictions are overturned on a late appeal because of new facts have by definition suffered a miscarriage of justice— far from it. As stated in the Explanatory Notes to this Bill, what this new clause does is to restore the position generally thought to have been established some while back whereby the claimant had to show that he was clearly innocent. Classically that would be the case where, for example, new DNA techniques showed that he could not have been guilty or where, as sometimes happens, another person eventually admits or is proved to have committed the crime in question.
In the Adams case, five members of the court, however, decided that the case would also qualify as a miscarriage of justice where the new fact,
“so undermines the evidence against the defendant that no conviction could possibly be based upon it”.
This test was later redefined in the Divisional Court as:
“Has the claimant established, beyond reasonable doubt, that no reasonable jury properly directed as to the law could convict on the evidence now to be considered?”.
The fact that the majority’s test in Adams needed later clarification and redefinition is perhaps an answer to the question posed by the noble Lord, Lord Borrie, as to why any further clarity is required.
The problem with the test, even as reformulated, is that all too easily it can require compensation to be paid to those in fact guilty of the offence. I will illustrate this by reference to a case called Maxwell which we had in the Supreme Court in a rather different context. Two brothers had been jointly convicted of two robberies and a murder. They had been targeting a number of elderly, vulnerable victims. The conviction was largely based on the evidence of a supergrass although it was generally supported by a jigsaw of other evidence. Some 12 years later their convictions, everybody agreed, had to be set aside because it became apparent that the police, behaving disgracefully, had secured the supergrass’s continuing co-operation in the prosecution by conferring on him a whole raft of benefits, including taking him to a local brothel.
As it happened, one of the brothers had, in the years after his conviction, admitted in a series of interviews that they had been guilty, probably in the hope that his case for parole would be improved. On the basis of those confessions, in his particular case a retrial was ordered at which he eventually pleaded guilty, but no such order for retrial could be made in the case of the brother who had remained silent, and he simply went free. However, under the test laid down by the majority in Adams, and since reformulated, I can see no answer to a compensation claim by that silent but surely guilty brother.
As to the Joint Committee’s suggestion that the proposed new test is, on its face, incompatible with the convention, I respectfully disagree. There is no time to discuss this in depth, but having read and reread the case of a recent Strasbourg decision on which that opinion was based, I simply disagree. On the Joint Committee’s approach, the lesser test also would offend the convention. The committee’s view really proves too much. Logically the only approach that would be compatible with the presumption of innocence on that approach would be to compensate everybody whose convictions are quashed on a late appeal because of new facts, and, plainly, Strasbourg does not require that.
On whatever test is applied, some people—who I accept are truly innocent—will go uncompensated. As to the possible modification of the clause to require proof of innocence only on the balance of probabilities, I doubt whether that would be likely to affect the outcome of many cases. Logically, the test proposed of “beyond reasonable doubt” is a better implementation of the convention requirement to show the miscarriage conclusively, although cosmetically it may be preferable.
Finally, it is true, as the Joint Committee noted, that comparatively small savings will be achieved by imposing this new test. However, the principle of the thing concerns me. It is, quite simply, wrong to have a test by which the taxpayer must compensate those whom the Secretary of State reasonably believes are, after all, probably guilty. To free those whose conviction is judged unsafe is one thing, but to compensate them is quite another.
Drugs
Lord Brown of Eaton-under-Heywood Excerpts(11 years, 1 month ago)
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Lord Brown of Eaton-under-Heywood (Non-Afl)
I thank my noble friend Lady Meacher for securing and so brilliantly introducing this debate on a subject that is always topical and always of the first importance. It is trite but true to say, first, that illicit drugs and the problems they create have for decades been a scourge around the world and, secondly, that the so-called war on drugs has conspicuously failed. I do not pretend to any particular expertise in this area, although a lifetime in the law has inevitably exposed me to many of the problems, and still less do I pretend to any easy solution. There are no quick fixes available here. Some would say that, like democracy, unsatisfactory though the present law is, it is better than any alternative and is the least worst option, but I respectfully question that. There must be better policies and better ways of control available. My main reason for participating in this debate is to encourage government to engage internationally with all those striving to reach such better solutions and to urge government to be imaginative and to recognise, as my noble friend Lady Meacher described that a number of other countries have, that policies concentrating essentially on criminalising all aspects of the drug trade are counterproductive. Better health must be the ultimate goal.
I respectfully suggest that the central objectives of those seeking a better control system should be twofold: first, to reduce the level of harmful drug-taking, and secondly to reduce the level of criminality resulting from present systems of control. As to reducing the level of harmful drug-taking, while recognising that most drugs are harmful or at least have the potential for harm, in certain circumstances some are not, or at any rate are no more so than alcohol or smoking. Putting aside the fact that sometimes drugs such as cannabis or even ecstasy can have medicinal value, it should be possible, as presently it is not, at least to carry out studies to see at what level the consumption of various substances becomes really harmful. We should not strive to criminalise substances not shown to be significantly harmful and thereby risk alienating many consumers, particularly the young. Government should also bear in mind that new psychoactive substances —chemical highs—not yet made illegal are increasingly being introduced into the market. A sound overall drugs policy should seek to combat the temptation to devise and resort to them too. The less the criminalisation involved, the better the chance of moving to a system by which drug-taking can be lawfully licensed and controlled and damage to health thereby reduced.
I turn to the second objective: changing the existing control system and reducing so far as possible the level of resulting criminality. Associated crime is essentially of the following kinds—of course I discount the actual offences of supply and use that one is contemplating perhaps in part, at least, decriminalising. First, there are crimes such as robberies, burglaries, theft and so forth which are committed for gain by those needing cash to fund their addiction. Many addicts’ lives are dominated by their addiction and they will do anything to satisfy their craving. Secondly, there are crimes committed in the course of turf wars between rival dealers protecting their trade and internationally between drug cartels and law enforcement agencies. These crimes regularly involve murder, extortion, corruption and so forth. Thirdly, there are crimes committed by those under the influence of drugs, who are disinhibited often to a considerably greater degree even than by excessive drinking. By the same token that the nation’s health might be improved by licensing rather than criminalising drug supply and use, so too might associated criminality be reduced. What a prize that would be. Perhaps liberalising—further liberalising as the noble Lord, Lord Fowler, would have it—the drugs regime would involve some short-term political cost, but the longer-term benefits would be colossal indeed. I hope that government will actively participate in the search for these benefits.