Imprisonment for Public Protection Action Plan

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 25th May 2023 Grand Committee

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

My Lords, it is a privilege as ever to follow the noble Lord, Lord Blunkett. There is so much one could say in this debate and so little time to say it. I shall focus solely on the burden of proof. This is far from just a snapping up of unconsidered trifles; it is really important.

We all know that the injustices of the IPP regime have long since reached scandal or crisis levels, but we all know too the political difficulties confronting a Minister newly in post who is facing an election next year where both main parties appear to be vying to be toughest on law and order. I fully support the projected resentencing proposal in the Commons report, but meantime, and altogether less politically problematic, we should recall that over 10 years after Section 128 of LASPO was included precisely for this situation, it remains unused. Surely at the very least a Section 128 ministerial order should now be made, at last reversing the burden of proof as to future dangerousness when the Parole Board considers release.

This would have several benefits. First, it would be easier for the Minister to introduce such an order than having to promote primary legislation. Secondly, it would counteract the Parole Board’s present risk-averse approach, encouraged—indeed, recently required—by Mr Raab’s insistence on supposed “public protection” at the expense of all else. With the burden reversed—a burden repeatedly said by Ken Clarke, Matthew Parris and others to be effectively impossible for the prisoner to discharge—the Parole Board need not be so defensive. If an IPP prisoner were to reoffend after release, the board would simply point out that the evidence of serious future risk relied on by the department was insufficient to justify further detention.

Thirdly, under this proposal there would be no question of sudden multiple releases. The new approach would take effect as and when individual IPP prisoners come up for Parole Board review. This consideration, too, should help the Minister. I urge our new Secretary of State for Justice to go at least this far as soon as possible.

As I have a moment left of my time, I will use it to urge the new Minister, of whom I hear nothing but good, to focus yet further on the immense and still-growing iniquities of the whole IPP scheme. These I believe to be incurable simply by improving yet again earlier versions of the action plan. The Minister must do what Sir Robert Neill and his committee urged last year.

Prisoners: Imprisonment for Public Protection

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 1st March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, as far as I am aware, that provision should be implemented. If it is not, that is a matter that I shall investigate and revert to your Lordships.

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

Recognising the need for public protection, my question relates to the IPP prisoners who are now detained for 10, 12 or 14 years beyond their tariff terms—that is, beyond the punishment they deserve for their offending—because they cannot prove to the Parole Board that they can be released without any risk of reoffending. It is a proof which the noble Lord, Lord Clarke of Nottingham, when he abolished this sentence in 2012, described as “almost impossible”. Do the Government think that is just? If so, will they continue to think it just, however many years may pass—after 15, 20 or 25 years—or do they recognise that there will come a point when it is unjust? If so, when?

[Lord Bellamy (Con)]

In response to the noble and learned Lord, I can say that we started with 6,000 offenders in this category. We now have 1,400 who have never been released. That is because the Parole Board considers them to be a risk to public protection—they have been reviewed, in many cases several times, and that is why they are still there. A further 1,500 have been released, but they have been recalled for various reasons—but they are eligible now for re-release.

Coroners (Determination of Suicide) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Friday 28th October 2022 Lords Chamber

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

My Lords, I also support the Bill. A flutter on the Derby or even the habit of doing one’s weekly football pools are one thing, but the domination of one’s whole life by a gambling addiction is quite another. It is a cancer in our society. Moreover, as poverty tightens, as it is already starting to, I fear that this addiction will grow. By the same token that desperate refugees risk their all in perilous cross-channel voyages, so, too, desperate people are readier to stake their all in the hope of sudden enrichment.

In principle, I supported the right reverend Prelate’s earlier version of this Bill last November, although I did not then explicitly accept its express terms. However, since then, it has been very substantially rejigged and improved to take on board a number of the understandable concerns that were expressed in November by the departmental Minister. In its present iteration, I believe that it would now work in practice and fully support it.

In truth, once one enlarges the scope of a coroner’s investigation—as this Bill proposes, to a degree—to consider not merely the how, when and where the deceased died but also, to some degree, why they died, one embarks inevitably upon a less certain field of inquiry which risks some measure of inconsistent outcome. But, and this is the all-important “but”, as the right reverend Prelate already said in his compelling opening—in doing so he shot one of my foxes; indeed, he shot most of them—let not the perfect be the enemy of the good. There is far more to gain than to lose in this proposal. The Bill would give us an altogether better statistical appreciation of the dreadful effects of gambling addiction upon our society, and a genuine improvement in the measurement of the number of those most extremely and tragically affected: those whose problem spirals and escalates to the point where they kill themselves in desperation.

As I mentioned the last time around, one consistent and cardinal principle has emerged in our coronial law down the years. Today, I will confine myself to a single quotation from the 2020 Supreme Court judgment given by Lady Arden in the case of Maughan, deciding that the civil, not criminal, standard of proof should apply to an inquest to bring in a verdict of suicide. Lady Arden said:

“The criminal standard may lead to suicides being under-recorded and to lessons not being learnt … The reasons for suicide are often complex. … There is a considerable public interest in accurate suicide statistics as they may reveal a need for social and medical care in areas not previously regarded as significant. Each suicide determination can help others by revealing how suicide risks may be managed in future.”


As I suggested in the November debate, this Bill is wholly consistent with that principle and approach: it is important to record as many of the relevant facts as would ensure, in the public interest, that this terrible social evil—the problem of gambling—does not go under-recorded. I hope that this Bill will be given a Second Reading and then sent successfully on its way to fruition.

Prisoners: Indeterminate Sentences for Public Protection

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 27th October 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the Government will of course consider those considerations along with all the others raised in the report.

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

My Lords, 10 years ago, the discredited ISPP scheme was abolished—alas, prospectively only. In the previous seven years, 8,711 people had been sentenced to that regime and almost all remain so. Almost exactly one-third of that number are in prison today, half of that third because they have never yet been released and half because they have been recalled. The rest are subject to and under threat of recall, living a nightmare life. How many of the 8,711 have finally managed to be discharged from this regime by having their licences discharged by definition 10 years or more after their initial release?

[Lord Bellamy (Con)]

My Lords, I will provide the noble and learned Lord with the figures shortly. It is quite a complicated question—more complicated than it seems. I simply remind the House that, as a result of the new arrangements introduced in the Police, Crime, Sentencing and Courts Act 2022, there is now an automatic annual referral to the Parole Board for consideration for release for these prisoners. The ability to terminate their licence after the 10 years is now baked into the system.

Parole Board (Amendment) Rules 2022

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 18th October 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I respectfully submit that we are dealing with angels dancing on pins here. What is intended by this change is to make it clear that the responsibility for the decision rests squarely with the Parole Board, and to avoid the risk, however remote, that the expert report tends to usurp the role of the decision-maker, running the risk of them delegating their decision to the expert. This amendment brings the Parole Board process in line with the rest of the justice system. I respectfully refer your Lordships to the evidence of Professor Stephen Shute to the Science and Technology Committee of the other place on 7 September. He made this very point, saying that it is for the Parole Board to make the decision, rather than run the risk of the matter being left in the hands of the expert.

Analogy has been rightly drawn with what happens elsewhere in the justice system; for example, in relation to pre-sentence reports in the criminal process. One does not find the probation officer saying that the court should impose a community sentence. One asks the probation officer to assess whether the offender is suitable for a community sentence. This change will align the practice of the Parole Board more closely with the rest of the justice system.

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

Not realising that this was a high tea, rather than a dinner break, I confess that much to my regret I was not here at the start of the debate. Why, if this is designed to stop these individual experts pre-empting the Parole Board’s decision, is it left to the Secretary of State to be allowed to do so with his single view?

[Lord Bellamy (Con)]

If I may respectfully point this out to the noble and learned Lord, the Secretary of State with his single view does not pre-empt the decision of the Parole Board. He presents a single view to the Parole Board.

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

Why is that any different from the same operation being done by those who have been contributing to the background?

[Lord Bellamy (Con)]

In a sense, this is an inter partes procedure, with the Secretary of State on one hand and the prisoner on the other. The Secretary of State, like a party, is putting his view to the board. That is the single view that, in my submission, he is entitled to put.

While I am on the single view, this is likely to refer simply to the very top tier of cases, probably 150 to 200 cases a year out of the many thousands that the Parole Board deals with. It refers to very dangerous, highly sensitive cases of prisoners involving murder, serious violence and so forth. In those cases, it is thought right that the Secretary of State, through his representative before the Parole Board, should be able to present a single overarching view. That is a sensible approach which avoids confusion and uncertainty.

Nothing in any of these reforms prevents or limits the ability of the Parole Board to make the right decision or the ability of the relevant members of staff, whether psychologists, probation officers or whatever, to make the risk assessments or to put in whatever observations they wish within the assessment that they are required to make, except to make the relevant recommendation.

It is not a change that should in any way undermine the system. HMPPS staff will continue to provide reports to the Parole Board. Their reports will still contain the same detailed evidence and assessment of risk as before. The only omission will be a recommendation on what decision the report writer thinks the Parole Board should make. Far from undermining the Parole Board, the intention of these reforms is to draw a sharp distinction between the roles of those who provide evidence and those whose duty it is to assess the evidence and reach a decision. That is the essential background.

Human Rights Act 1998

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 14th July 2022 Lords Chamber

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

My Lords, some 40 years ago—that is, some 20 years before the 1998 Act—I used to appear for the UK Government in Strasbourg. I regularly—almost invariably—lost their cases. My record there was: played 12, lost 10, drew 1, won 1. That counted as not a bad record in those days.

I then spent some 30 years on the Bench, roughly half of it before the 1998 Act came into force in 2000 and half afterwards, dealing with cases of a human rights nature. There are some who question whether the convention was ever necessary for us, and whether our own laws were not ample and well able to secure our basic rights and liberties. Indeed, one prominent member of the Tory party just a few weeks ago in this House, in an HRA debate, raised that very question and asked the Minister to identify any specific advantages that had come to this country as a result of our adherence to the European convention. Five minutes is just about enough for a riposte to that, to show that the convention has proved over the years invaluable in liberalising and modernising our laws and practices, but it does not allow time to discuss the impact of the 1998 Act in intensifying, accelerating and facilitating the process. Still less does it give time to discuss the more nuanced and altogether more topical question as to the effect of the proposed replacement of the 1998 Act with Mr Raab’s current human rights Bill. As to that, I shall say no more than that, while I regard much of it as window dressing—or in the words of Sir Robert Buckland, as a solution in search of a problem—I am less sceptical than many as to whether it is all bad or whether it is designed, as some would suggest, to limit our human rights in future.

Turning therefore very briefly to the benefits of the convention over the years, here are just a few. These first are drawn from the cases that I lost in Strasbourg. First, on prisoner rights, we used to censor all prisoner correspondence, in and out, even with their lawyers. The Home Office, to its credit, wanted to liberalise, this regime, but the Prison Officers’ Association, a militant union, would not allow it. We duly went to Strasbourg, fought and, of course, lost the cases, and the Home Office was then in a position to confront the union with these adverse decisions, and we made way forward.

We similarly happily lost the closed-shop case to the then Government: there is as much a right not to join a union as there is to join one. Other cases I lost were about telephone tapping practices and the security service intrusions where there was no legal authorisation. In later years, as the noble Baroness, Lady Warwick, mentioned, our adherence to the convention prevented the MoD outlawing all service personnel with homosexual tendencies, and prevented the Executive, as opposed to the judiciary, in life cases determining the actual length of tariff sentences and prisoner release dates. One could go on and on, but there is no time.

Despite my general support for the convention, I should not be taken as applauding all the court’s decisions or as opposing all that is now proposed by way of what the Minister calls the recalibration of the legislation—there are aspects that need it. The noble Lord, Lord Sandhurst, mentioned the Aguilar case where the Supreme Court made a contentious decision on forced marriage—I dissented.

Prisons: Death Statistics

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 30th March 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not recognise the phrase “staff shortages” when put in context. Between the end of October 2016 and the end of December last year, the number of prison officers increased from just under 18,000 to over 22,000. That is about 4,000 additional full-time equivalent officers.

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

My Lords, is the Minister as concerned and unsurprised as I am that the highest rate of self-inflicted deaths, and indeed of other instances of self-harm, is among the indeterminate prisoners, the IPPs—higher even than life prisoners and getting higher as the period of their post-tariff detention extends, so that the vast majority have done more than 10 years than their punishment required?

[Lord Wolfson of Tredegar (Con)]

My Lords, we have discussed IPP prisoners on several occasions. I acknowledge the work the noble and learned Lord has been doing in this area. As he knows, the Justice Select Committee has been looking at this issue. I have already committed to reviewing the position as soon as we receive its report.

Prisoners: Imprisonment for Public Protection Sentences

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 8th March 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I have those figures: as at the end of September 2021, there were 19 women in custody who had never been released and 115 women in the community on licence. A qualified psychologist has reviewed the sentence plan of every woman serving an IPP sentence in custody to ensure that the plan identifies the right courses and work she needs to complete in order to demonstrate a reduction in risk.

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

Responding recently to the Atkin Lecture of the noble and learned Lord, Lord Garnier, on prisons, Mr Raab referred to the growing proportion of unreleased IPP prisoners who had committed “more serious offences”. May he perhaps have overlooked the 570 unreleased IPPs who have served more than 10 years beyond their tariff terms, fewer than 50 of whom had tariff terms of over four years, 200 of whom had tariff terms of less than two years—hardly sentences reflecting serious offences? Does the Minister think that they have been overlooked or merely forgotten?

[Lord Wolfson of Tredegar (Con)]

My Lords, they have neither been overlooked nor forgotten. The vast majority of the IPP prisoners who have never been released received their IPP either for a serious sexual offence or for violence against the person. However, progress is being made. In December 2020, there were 1,849 IPP prisoners who had never been released. In December last year there were 1,602. That is a 13% fall in one year.

Judicial Review and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I find myself in the same position as my noble friend Lord Anderson and I would like to add just a few words to what he said.

One of the points made in the Explanatory Notes—and I am looking at paragraph 21—is that:

“The diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.”


My noble friend Lord Pannick invites us to address subsection (1), read together with subsection (4). If one asks oneself what these provisions are driving at, one has to bear in mind that there is a whole range of diverse circumstances, some of which may affect private individuals very much indeed; in which case, one would be very concerned that their remedies were not being cut out. Other cases deal with administration and circumstances where individuals probably are not affected at all, but the good administration or even the security of the country is very much at stake when a quashing order is made.

I hope I can be forgiven for coming back to the case of HM Treasury v Ahmed in 2010, which I was involved in. I mentioned it at Second Reading and when I was addressing this subject at an earlier stage. It is worth dwelling on that case because it is an illustration of a circumstance where the clauses that are under attack by these amendments could be valuable. It was a case where the Treasury had pronounced an order to give effect to our international obligations under the United Nations Act 1946, designed to freeze the assets of suspected terrorists. That was our international obligation and, understandably, the Treasury made the order. But when the case came before the Supreme Court, it was pointed out that there was no parliamentary authority for such an extreme measure. The Supreme Court unanimously decided that the order should be set aside.

I suggested in the course of the hearing and, indeed, at the end of my speech—the leading speech in the main case—that we should suspend the effect of the order to give time for the Government to remedy the situation in order to avoid the terrorists dissipating their assets. The risk was that the banks that were holding the assets under the order that was under attack would release them under demand from the terrorists. Clearly, that would not be desirable.

I was overruled by six to one for a reason which, I think, demonstrates why these provisions are needed. My noble and learned friend Lord Brown of Eaton-under-Heywood was in the majority of the six against me so perhaps he can explain more fully what their reasoning was. As I understand it, they were saying that if you quash the order you are declaring what the law always was; in other words, the Treasury order was of no effect at all—that was the effect of the order—and, as I think the noble and learned Lord, Lord Phillips, said, it would indeed undermine the effect of the quashing order to suspend it because it would be suspecting that there was something wrong with the decision to quash the order.

I could not understand that and I still cannot understand the sense of it. Indeed, one of the broadsheet papers, having spotted what was going on, asked: has the Supreme Court gone mad? I remember that certain people were rather discomfited by that but it was a very strange thing to do because there was no question of the banks releasing the money. But it was just as well to suspend the order so that they would be comforted by the fact that we were not actually making the order until Parliament had come in and produced a proper remedy to sort it out.

There you are. If you look at subsection (4), the “impugned act” was this order and what I wanted to do was to, in effect, allow the impugned act to be maintained—or, as subsection (4) puts it, “upheld”—so that the matter could be corrected. I cannot see anything objectionable to exercising the power in subsection (1)(b) in a circumstance of that kind. I wish we had had that power available to us at the time. It would have made my life a good deal easier in our discussions. It was not there and any idea that the common law could do that had really been exploded by the decision of the majority.

There is a problem and it would arise time and again if people were looking at the majority decision. There are, or could be, cases where for the protection of the public and in the interests of good administration the possibility of suspending the effect of the order so that the impugned act is regarded as valid until the defect can be corrected will be valuable. I suggest, with great respect to my noble friend, that it would be unwise to remove these provisions from the Bill.

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

My Lords, I feel I have to rise at this juncture. I supported Clause 1 at Second Reading and continue to do so today. Like other noble Lords who have spoken since, the noble Lord, Lord Pannick, I suggest, puts the case against the clause altogether too high. I say that Clause 1 and the powers that it confers on the judiciary valuably would add to the judges’ discretion, their powers to do justice not just to the claimant in a particular case but on a wider basis. I, too, was in the Spectrum case—Lord Nicholls’ case with the noble and learned Lord, Lord Hope, and others—and it was not a case in which we thought at that stage and in that context we should exercise this power, assuming we had it, to develop the law.

I am going to disappoint the Committee because I have insufficient recollection—I shall come back to this on Report, I promise or threaten—to deal now with the point from the noble and learned Lord, Lord Hope. But I see the force of what he says and, in a rather different context, I, too, wish to reminisce. I go back even further, a quarter of a century, to a case called Percy v Hall. It was so long ago that Mr Keir Starmer was the second junior with a very white wig. It was a case about by-laws in respect of Menwith Hill, a listening post, a secure station for GCHQ and the Americans, and the by-laws, not surprisingly, precluded public entry.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),

“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,

and the condition is that

“as a matter of substance”

an order under new subsection (1) would

“offer adequate redress in relation to the relevant defect”.

Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?

My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”.

If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to

“the interests or expectations of persons who have relied on the impugned act”.

Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).

I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.

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

I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.

I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.

So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.

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

My Lords, this group of amendments, tabled by the noble Lord, Lord Ponsonby, is designed to take the sting out of the provisions in Clause 1, both as to the circumstances on which suspended or prospective-only quashing orders may be made and as to the way in which the discretion should be exercised. If passed, the amendments would each mitigate the damage which in my view is inflicted on the rule of law inherent in Clause 1. However, if all were passed, they would still by no means eliminate it. As has been pointed out, the worst part of Clause 1—in a sense, the elephant in the room of the first two groups—is the presumption, which we shall come to in the next group, which has been spoken to by the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Falconer, and which is, I suspect, opposed by the overwhelming majority of those who have spoken. The noble Lord, Lord Anderson, spoke to it in the last group, and said that his support for the prospective quashing-order power was conditional on the removal of the presumption.

I suggest that there is also a flavour to Clause 1 that is inherently offensive. We are faced with a proposal that not only permits the suspension of a quashing order and the retrospective validation of unlawful acts—and we accept the power of suspension—but dictates to the court, by new subsections (8), (9) and (10), how the court should exercise its discretion. Once again, I have to say that I am impressed but dubious about the optimism expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that the Government are concerned only to give judges tools in their toolbox which they would not use, and that they can exercise their discretion in any way that they wish, because that is not actually how these new subsections work—and they are wrong in principle to dictate the way in which the discretion is exercised. The court when considering judicial review—

Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

Unless the Government have a change of heart, I cannot see that we will not be returning to this on Report, so all the excellent briefing that we have received can wait until then. We have been given such great tutorials and I think that we will receive more. All that briefing has been welcome but may not have been necessary.

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

My Lords, I shall continue to limit my interventions in Committee to expressing views that I hold simply as a lawyer. The course I took on Tuesday of last week, when we were discussing Clause 11, gave us an early introduction to the very provisions with regard to reinterpreting the convention that we are now concerned with. I reserve the right, when we come to Report, to come in on what I regard as the more obviously mean-spirited and ill-judged other provisions, which are, as is patent, designed to deter as many as possible of those who would otherwise wish to seek refugee status in this country.

Clause 29, as has already been pointed out, is an omnibus provision that takes you into further and more specific, and therefore more specifically objectionable, provisions, which take the convention apart and reinterpret it piece by piece. As both noble Baronesses have said, that is itself intrinsically an objectionable way to proceed with regard to one’s legal obligations.

There are three further stand part notices in this group. I will not touch on all of them because time is the enemy today, as it will be on Thursday. On Clause 33, the protection from persecution, as the Bingham Centre for the Rule of Law has valuably pointed out, this clause fundamentally changes the approach to protection from persecution from a focus on meaningful and effective protection against persecution, which our long-established jurisdiction establishes is the correct focus, to a focus on the existence of a reasonable system to prevent, investigate and prosecute instances of where, despite the system, there has been persecution. This refocusing mischievously—and, I suggest, in legal terms, fatally—sidesteps the all-important question of whether the system is likely to protect the individual concerned.

In the interests of time, rather than make comparatively lesser points on the other two named clauses, Clauses 34 and 35, I will pass on. I say only on Clause 35, mentioned by the noble Baroness, Lady Hamwee, that this is directed to Article 1(F) of the convention. Clause 35(2) goes to Article 1(F)(b), concerning serious non-political crimes, and we will come in the next group to Clause 37, which deals with Article 33 of the convention on non-refoulement. Whatever the position on non-refoulement that may be arrived at under the refugee convention, even if, for example, the asylum seeker was found to be a war criminal and so is denied refugee status under Article 1(F)(a) of the convention—see Clause 35(1) of the Bill—it still is not possible to return that person to their country of origin if they would be persecuted. That is simply precluded by Article 3 of the ECHR.

I have had a helpful exchange of emails with the Bill manager. I asked the Minister at our Cross-Bench meeting a question which he referred to the Bill manager; namely, whether any of these provisions in the Bill were intended or calculated to alter any of the well-established and authoritative case law in this country. Except for one point which the Bill manager made regarding Clause 37, which corrects an ambiguity that arose under Section 72 of the 2002 Act, I am unpersuaded that where there is a departure from our case law, as is recognised, it is properly made under this Bill. I finish at this point.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have been here for only eight years, which is not long in your Lordships’ House, but I have never seen so many attempts to delete clauses from a Bill—and of course that is completely the right thing to do here. With this Government, I always look for dead cats being thrown on the table to distract us from something much worse that is happening under the table, but there are so many dead cats in this Bill that I am assuming they are all genuine bits of the Bill that the Government want to pass, which is quite disturbing.

Here the Government are trying to unilaterally rewrite international law, and they are doing so to appease the far right, both in their party and in the country. That is a pointless thing to do; you will never appease the far right. It is an example of the Government throwing away decades of international progress on domestic and international policies only to appease a segment of society who are outspoken and noisy—like the Greens, I suppose, but, unlike the Greens, they actually have malign intent.

We are sending a signal to the world that we are not competent to run our country any more, and certainly not worthy of being part of any international grouping that believes in progress and the rights of the human being.

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[Lord Wolfson of Tredegar (Con)]

I hope the noble Lord does not take it amiss if I say, with respect, that he makes the same point as he made earlier. and I understood it. I need to be very careful that I do not get inadvertently drawn into disclosing legal advice, but I hear the point from the noble Lord that he and others would like to see a greater fleshing out of the Government’s legal position. I have said that I will see what I can do to assist in that.

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

Very diffidently, am I entirely wrong in thinking that, under Article 35 of the convention, some heed is required to be paid to the UNHCR’s expression of its approach to the convention? My recollection is that Lord Bingham said as much in one of the cases I mentioned last week, Asfaw. Is that not right?

[Lord Wolfson of Tredegar (Con)]

Respectfully, what I said earlier is that it is not the arbiter of the interpretation of the convention. I do not think that is inconsistent with the point the noble and learned Lord just made.

I was proposing to sit down, after suggesting to the Committee that we should keep these various clauses in the Bill.

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[Baroness Ludford (LD)]

My Lords, all of these clauses seek to restrict access to the protection of the refugee convention. I will speak to Amendments 103 and 104 to Clause 31 and Amendment 111 to Clause 37, which are all in the name of the noble Lord, Lord Dubs, and which I have co-signed. However, I share the view of my noble friend Lady Hamwee and the noble Baroness, Lady Chakrabarti, that all of these clauses should in fact be removed.

The problem with Clause 31 is that it changes the standard of proof for the test of whether a person is a refugee. It creates two limbs of the test and changes the bar from “reasonable likelihood” to

“on the balance of probabilities”.

Although the refugee convention does not prescribe the standard of proof, UNHCR’s handbook says:

“The requirement of evidence should … not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.”


So, for 20 years, the UK courts, including the Supreme Court, have applied a “reasonable likelihood” standard of proof in a composite and holistic manner.

Clause 31 overturns this established interpretation of the law by dividing the overall test into a series of sub-questions and applying different standards of proof to different limbs of questioning, to require the person to prove on a balance of probabilities that they fear persecution and the decision-maker to revert to a test of reasonable likelihood in assessing whether the person would face persecution and lack state protection. It is quite a mishmash, and a complex and confusing one—not least for already burdened caseworkers. As we have heard so frequently in this Committee, if the Government really want to fix a broken asylum system, why are they making everything more complex and building in delay?

As the Bingham Centre points out, Clause 31

“allows for rejection of a person as a refugee because they failed one of the steps”

imposing that higher hurdle,

“whereas if the test was taken in its totality, the person may have been accepted as a refugee.”

The process may well lead to exclusion from sheer error because of all these complex, different bits of the test. Either the JCHR Amendments 103 and 104 should be accepted, or Clause 31 should be deleted.

On Amendment 111 to Clause 37, as the noble Lord, Lord Dubs, has said, we object to the lowering of the threshold for regarding a crime as particularly serious such that a person can be expelled. It is designed to—and will—exclude many more people from the protection of the refugee convention. Not only is the threshold sentence reduced from two years to 12 months but it changes the rebuttable presumption of “particularly serious” into an unchallengeable assertion.

This is disproportionate; a blanket exclusion is incompatible with the refugee convention, which envisages a crime that is a major threat and expulsion as a last resort. Bear in mind that the Bill seeks to impose a four-year sentence for the mere act of arriving in the UK without permission, which most refugees have to do. That gives you a measure of the lack of proportion in what is supposed to be a serious crime under the remit of the Bill; I am not validating or endorsing any crime, but under the refugee convention it has to be “particularly serious”, and the Government are departing from that.

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

My Lords, I confine my brief comments on this group to Clauses 31 and 32, both of which have been touched on, respectively, by the noble Baronesses, Lady Ludford and Lady Lister.

Clause 31 is peculiarly objectionable. As has been described, it divides up what should be a single, holistic question into a series of sub-questions and compounds that error by the differentiation in some important respects of standards of proof. It imposes an objectionable higher standard of proof on one critical provision. As the Joint Committee on Human Rights says in its report HL Paper 143—pages 39 to 41—it raises the standard of proof from a “reasonable likelihood” to a “balance of probabilities”.

The overall holistic approach to Article 31 was established as long ago as 1995 in a case called Ravichandran, which reported in 1996 in immigration appeal report 77. I confess that I wrote the lead judgment, but it has been consistently applied by the higher courts ever since. To quote one passage, the approach to Article 1A of the convention should be

“a single composite question … looked at in the round and all the relevant circumstances brought into account”

to see if there is a real risk.

Those promoting this clause should read a devastating critique of Clause 31 last month by Hugo Storey, the immediate past president of the International Association of Refugee and Migration Judges who has just retired from being an Upper Tribunal judge. He has no doubt that it will lead to “prodigious litigation”; in six compelling pages that those responsible for the Bill must read, he explains precisely why.

Clause 32, on the question of the particular social group, has been dealt with. It seeks to overturn Lord Bingham’s judgment in the case of Fornah, in the Appellate Committee of this House back in 2006, which was all about a 15 year-old girl trying to avoid female genital mutilation in Sierra Leone. I was a junior member of that court, and this clause tries, contrary to that clear judgment, to introduce a conjunctive approach to the two relevant criteria. It would be a grave mistake and cause grave injustice.

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[Lord Wolfson of Tredegar (Con)]

I thought I made it absolutely clear when I said earlier that the court in that case made its decision against the legislative background at the time. Parliament is entitled to change the legislative background. We will want to make sure that we remain consistent with the refugee convention, and, as I said earlier, we believe that we are. There is nothing wrong with doing that. It is simply not the case that we are somehow bound as a Parliament by what the Court of Appeal said in the case referred to by my noble friend. Therefore, with great respect, I disagree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, where he said that a single holistic question was better and that the higher standard was objectionable. With respect, I disagree on both points.

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

Does the Minister agree that, if, under this clause in future, somebody were to fail—they could prove only 45% of the relevant limb of the clause—they nevertheless could not be refouled? Certainly, under Article 3 of the ECHR the test is “reasonable likelihood” and not “balance of probabilities”.

[Lord Wolfson of Tredegar (Con)]

With respect, refoulement is a separate issue and, with greater respect, I will deal with it separately. What we are establishing here is what you need to do to establish your “well-founded fear”. If you cannot establish, on the balance of probabilities, that you are who you say you are, then yes, under this test, you will not satisfy Clause 31(2)(a).

I will now turn to Clause 32, because otherwise I will start to repeat myself. Article 1(A)(2) of the refugee convention states that a refugee is an individual who has a

“well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”,

and Clause 32 lays out precisely what is meant by each of those characteristics, which are sometimes called “convention reasons”. Again, the purpose here is to make sure that all decision-makers, including both the Home Office and the courts, understand and operate to the same definitions. That is, I suggest, a desirable law reform.

On Amendment 105, there is a mismatch between how the concept of a “particular social group” is defined in current legislation, government policy and some tribunal judgments, and also in how the definition has been interpreted by some courts. There is no authoritative or universally agreed definition of “particular social group” among state parties to the convention and, in particular, there is no universal agreement as to whether the test set out in Article 1(A)(2) of the refugee convention should be applied cumulatively. The UNHCR has issued guidance supporting the view that the cumulative approach is a misapplication of the refugee convention, but, as I said in the last group, that guidance is neither legally binding nor determinative as a matter of international law.

Article 1(A)(2) of the convention does not elaborate on what is meant by

“membership of a particular social group”;

there is no supranational body with authority to give a determinative ruling and, therefore, each state party, including the UK, has to interpret it. We believe that the definition in Clause 32 captures what is meant in the convention by a “particular social group”. We have looked at the broad wording in the convention, the travaux préparatoires—excuse my French—the approach of a number of other jurisdictions, and Article 31 of the Vienna convention, and we believe that setting it out in this way will make it clearer.

The amendment would mean that you would have to satisfy only one of the conditions to be considered a member of a “particular social group”, and that would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It would broaden the definition to cover potentially transient factors that could perhaps be changed, such as an individual’s occupation. That is the first point. The second is that our proposed definition accords with the widely used and accepted interpretation of the “particular social group” concept, as the noble Baroness, Lady Lister, noted. It is an EU interpretation; it comes from the approach in the EU qualification directive, which underpins the Common European Asylum System. We are very happy to look at EU interpretations; we do not have a closed mind—when they get it right, they get it right, and being independent means that we can look more broadly. However, with great respect, it is difficult to attack this as something utterly wrong if, in fact, this is the interpretation in that legislation.

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[Baroness Ludford (LD)]

I know the noble Lord has listened to a lot of the previous debate. He will know there is no such thing as a first safe country principle under the refugee convention. I tried to explain what the obligation was—namely, not to move on if you have refugee status or protection in a country. The UNHCR has made it clear that there would never have been a refugee convention if there had been a safe first country principle, because countries abutting the problematic countries—for example, Jordan, Iran and Pakistan—have had to accept everyone. No other countries like the UK would ever have had any refugees because we do not abut conflict zones. I am sorry, but this must be rebutted every time it is trotted out.

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

I will address Clause 36 very briefly, which I discussed last week in the context of Clause 11. I confine myself today to asking two questions.

First, do the Government accept, as I suggest they must, that Clause 36 would overrule the judgments of Lord Bingham and, among others, the noble and learned Lord, Lord Hope of Craighead, in Asfaw, fully affirming what had been said on the relevant issues in the judgment I gave in the Divisional Court in Adimi? This has all been elaborated on today by my noble and learned friend, Lord Etherton.

Secondly, if so, are the Government overturning Asfaw and Adimi because, disinterestedly, they genuinely think those decisions are clearly wrong—or because they think an alternative and more anti-asylum seeker interpretation may arguably be available to them?

[Baroness Jones of Moulsecoomb (GP)]

The idea of people being able to arrive here without going through a third country has been debated before in the course of this Bill—I cannot remember whether it was last week or another time. When we queried how people could get here, the Minister explained that they could come by aeroplane. That might be possible for some, but it is not possible for everyone who might need to be here in Britain rather than somewhere in Germany or France. Perhaps the Minister could give us a better explanation about how people get here, if there are not enough safe routes or aeroplanes.

To me, this is a naked attempt to stop refugees. I do not understand why the Government cannot see this as well. We are taking advantage of our geography and saying, “We’re too far away, you can’t come”. This is ridiculous. As I have pointed out before, we have a moral duty to many of these people. We have disrupted their politics, their climate and their lives—therefore, we owe them. It is not as simple as saying that they want to join their mates.

This Bill should be setting out safe routes and establishing ways to get people to the UK safely and legally. At the moment, we do not have that because the Government are pulling up the drawbridge.