Illegal Migration Bill

Debate between Lord Carlile of Berriew and Baroness Butler-Sloss

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I will not repeat what has already been said. I agree with most of what has been said in the preceding speeches, particularly the remarks made by my noble friend Lord Kerr about the inadequacy of Schedule 1, and all the examples that have been given, including those given very clearly by my noble friend Lord Alton, of cases which create real dangers of injustice which are plainly contrary to the international conventions to which this country subscribes. Instead, I want to obtain confirmation from the Minister of some short propositions which relate to Clause 6 of the Bill.

Clause 6 provides that the Secretary of State may amend Schedule 1 in certain circumstances. Can the Minister confirm that if a cogent application is made to the Secretary of State to amend Schedule 1 in particular ways and he refuses, that would immediately open the gate for judicial review proceedings? I foresee a menu of 57 opportunities in Schedule 1 for 57 applications for judicial review—perhaps a few fewer—being made by well-known and well-funded NGOs for amendments to be made to that schedule because of circumstances in those countries.

Further, would not the Secretary of State face considerable obstacles if such judicial review applications were made? First, there is the weakness of the standard of proof that is set by the Government for themselves—“if satisfied”, whatever that means. Secondly, in Clause 6(1)(a), which was referred to earlier, the Secretary of State can add a country or territory if satisfied that

“there is in general in that country or territory, or part, no serious risk of persecution”.

Does that not contradict certain other legal provisions which, for example, provide guarantees of safety to a group of people we discussed earlier this week—the cohort of LGBTQ+ people who might be affected?

Thirdly, Clause 6(1)(b) states:

“removal of persons to that country or territory, or part, pursuant to the duty in section 2(1) will not in general contravene the United Kingdom’s obligations”.

Is that not pathetically weak, and contradictory to other legislation? I again take the LGBTQ+ cohort as my example.

If that analysis of Clause 6(1) and Schedule 1 is not entirely coherent, surely it is enough to persuade the Government that they should really reconsider the drafting of Clause 6 and the contents of Schedule 1. If they insist on keeping Schedule 1, it should, from the start of the Bill coming into effect, reflect all the dangers in all countries in which there are dangers for certain groups of people who could not be described as people “in general”. This is ineffective, and I am sure it will put substantial fees into the hands of my learned friends, but that is not what this place should be trying to do.

[Baroness Butler-Sloss (CB)]

My Lords, I support these amendments and the speeches that were just given. I want to make two points only. First, it is extraordinary to me that Schedule 1 shows a list of countries with which this country has no agreement. I cannot understand how one can put into primary legislation a list of countries with which the Government hope to have an agreement, when that is not yet happening.

Secondly, I spoke earlier, at greater length, about the unaccompanied child who comes to the age of 18. Your Lordships have only to think of a child of 10, and we know that some children of 10 have come through. With any luck, a child of 10 will not be kept in Home Office accommodation; he or she is likely to go into the care of a local authority under the Children Acts and will very likely be fostered. It is comparatively easy to be fostered at 10. The child would have spent eight years at an English school, would have grown into speaking English, probably forgetting his or her own language to some extent, and will be settled.

Immediately after the age of 18—subject to the Home Office’s inordinate delays in removing people, but assuming that it achieves something better in the future—he or she can be removed and will go to a country. At the moment, there is only one, unless the child is Albanian, when they would have gone back earlier. That child aged 18, just grown up, will find him or herself in a country the language of which they probably do not speak and he or she will know absolutely nothing. I hope your Lordships agree with me that that, quite simply, is cruel.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Baroness Butler-Sloss

Tuesday 19th July 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, after a good deal of thought, my conclusion is that I support the conclusions of the Joint Committee, not the amendments. I previously joined the noble Lord, Lord King, in trying to bring provisions such as this to the statute book rather more urgently. I agree with his comment that it is the most scrutinised Bill we have ever seen—certainly in my more than 30 years in one or other House of Parliament. It was published with three independent reports supporting it, one of which, David Anderson’s report, was extremely complete and considered every aspect of the proposed legislation. It comes to this House with more documents published by the Government, including some of the inner work of GCHQ, than we have ever seen before. It is a great tribute to GCHQ that it accepted the advice that many people outside its establishment gave to it that it should reveal more of what it is doing. I absolutely agree with what has been said by the noble Lord, Lord Evans, who had great experience of these matters throughout his career until he entered your Lordships’ House.

What are we really trying to achieve? I think that we are trying to achieve what we already do when we have the opportunity to do it. There is a clear analogy here with mobile telephony records. As the Crown Prosecution Service has said, in 95% of the serious cases that are tried—when there is a not guilty plea, in other words—in the Crown Courts, mobile telephony records and cell site analysis are used as an extraordinarily powerful tool contributing to the conviction of very serious criminals.

On this occasion, I am not going to bore your Lordships with anecdotes about cases that I and other noble Lords have been involved in, for the simple reason that there are far too many cases to describe from those anecdotes in which mobile telephony records have been used to good effect. What technique is used—or has been used up to this stage, until this Bill is enacted—for accessing mobile telephony and internet connection records? Where they are available, the police and other authorities try to obtain access to them; when they obtain access to them, they can track the activities of the people whom they suspect; and, when they can track those activities to good, evidential effect, they use them. The result of that is to be able to put extremely powerful evidence before the courts. All that we are trying to do in this Bill is to create a reliable system that is as uniform as possible so that this type of information can be used in all cases.

Underlying the criticism of this provision is some kind of mythology about the activities of the security services, GCHQ and the police. There seems to be a myth about that they are so bored, so inactive, so idle and so inert, and suffer from such excessive curiosity, that they have the time to look at the completely uninteresting, irrelevant internet records of any member of the public for something to do. That is an appalling suggestion, quite apart from the extremely strong discipline exerted—and I looked at this in some detail when I was Independent Reviewer of Terrorism Legislation and subsequently—on members of those security services. There are some far more experienced than me in this House, sitting in this House today, but I am sure that those noble Lords and noble Baronesses would agree that, if people were so stupid as to use their time in the security services to look up our credit card accounts, for example, they would be in very serious disciplinary trouble. So let us put that canard aside.

Let us also remember that we are not comparing like with like when we talk about other countries. The Joint Committee came to the conclusion—and the Government have, rightly, come to the same conclusion—that the Danish experiment failed because it was different and did not use the most appropriate technology. It was unfortunate for the Danes—they did it before we decided to do it—but the fact is that the Danish experiment is irrelevant to this discussion. Let us not forget, too, the powers of investigators in other countries. We are setting down in this Bill controls of the security services and anybody else who wishes to obtain access to those records, which will be the best controls in the world. We are ahead of the rest of the world in these provisions.

Compare it with what juges d’instruction can do, for example, in France or Belgium. If any one of us is an accused in France or Belgium or any other country on the continent where they have that kind of system, not only will the juges d’instruction have access to those records in any event, and not only do they have powers to direct that they have disclosure of those records to themselves, but the subject will never have the faintest idea that that has been done. Although it is tempting to compare what we do in this country with a number of other countries, it is misleading because no two systems are the same.

I agree with the right reverend Prelate that this proposal has been examined. It has had as objective an examination as one could imagine. It is a matter of record that my noble friend Lord Strasburger, like it or not, agreed with the committee’s conclusion. History will say that he agreed with that conclusion because it is there in the committee’s report. It is now time that we move on, accept that this Bill contains an objective analysis and pass this important set of provisions which will help our authorities to catch the most serious criminals, including hundreds of paedophiles, as alluded to by the noble Lord, Lord Evans.

[Baroness Butler-Sloss (CB)]

My Lords, I have not spoken at all on this Bill so far but I should like to make a practical point following what the noble Lord, Lord Carlile, and previous speakers have said. I speak as a former family judge who over the years has been very involved in safeguarding. One of the most important things is to be sure that the police—it is really the police that we are talking about, rather than the security services—have all the tools that they can possibly have to be able to convince a jury, on a prosecution, that a really serious crime has been committed. If this is going to catch even more paedophiles I endorse it, and I hope the House will agree with me.

Modern Slavery Bill

Debate between Lord Carlile of Berriew and Baroness Butler-Sloss

Monday 23rd February 2015 Lords Chamber

[Lord Carlile of Berriew]

I am very grateful to the noble and learned Baroness for giving way. Does she not recognise, first, that exactly the kinds of dispute she is describing now are litigated on a daily basis in the Administrative Court and, secondly, that good case management, which is part of the Leveson reforms and recommendations, can make the preparation of these issues and their determination very much easier and as routine as analogous issues?

[Baroness Butler-Sloss]

I certainly hope that the noble Lord, Lord Carlile, is right about that. However, with the government position under Clauses 1 and 2, including with Amendment 4, you do not have to prove that the young person is 16, 17 or 18 in order to get a conviction. You will have an aggravated situation if you show that it is in fact a child, say of 14 or 15, and not a young woman of 20, and the judge’s sentence will no doubt be greater. However, the issue of age will not arise for the jury to try because, under Clause 1, you do not have to have an age—anybody who is treated in the way that Clause 1 describes can be found to be a victim. This seems to me to be something introduced by the Bill which has not come in before and which will, I certainly hope, make a very dramatic difference to the way in which prosecutions are dealt with.

Another point that Kevin Hyland made, which I think is of some interest, is about control and prevention orders, on which we have spent virtually no time at all in this House. He told me about a group of Roma—not all of whom are Romanian; some are from other parts of Europe—who apparently are camping at the moment in either Park Lane or Hyde Park. They are begging, and the children are no doubt thieving, in Edgware Road and Oxford Street. He says that when the control and prevention orders come into place, if you can find that these children are doing this, a control or prevention order can be made against the adult—many of whom, of course, are not the parents of these children—and that can last for up to five years and will protect the children, who can also be taken into care. He also made the point that this could be done at the border by the border police, who can get a magistrate’s order in order to protect these children well before you have to come to a prosecution because the children are being exploited. I thought that these were quite interesting points to relay to the House.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Debate between Lord Carlile of Berriew and Baroness Butler-Sloss

Wednesday 7th May 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I very much support the excellent speech made by the noble Lord, Lord Pannick. I hasten to say that I do not have any expertise in judicial review or in the work of the administrative court, save that I sat on the Court of Appeal, but the legal aid amendments raise constitutional issues of some importance.

I wish to say something about the position of the Lord Chancellor, following on from what was said by the noble Lord, Lord Lester. The Lord Chancellor is head of the Ministry of Justice and, more importantly, has for centuries been the conscience of the monarch and continues to be so. I wonder whether this Lord Chancellor has ever heard of that. Successive Lord Chancellors have had to juggle two positions, as a member of the Cabinet of the Prime Minister of the day and as head of the administration of justice. These two positions inevitably create a conflict of interest, which successive Lord Chancellors have generally managed well.

We now have for the first time a Lord Chancellor who is not a lawyer, who appears not to understand the importance of the judicial and legal systems, and who is either unaware or chooses to be unaware that the administration of justice is one of the pillars of the constitution. He appears not to recognise his special responsibility as Lord Chancellor. He has not listened to the judiciary, particularly the senior judiciary, or to the legal profession, and he has not given sufficient consideration to the implications of these regulations. I have had a great admiration for successive Lord Chancellors—and I suppose I must declare an interest as the sister of Lord Havers—and it saddens me to have to say this. Rather like the noble Lord, Lord Lester, I now regret the clause in the Constitutional Reform Act 2005 that permitted a non-lawyer to become Lord Chancellor.

The administrative court has an increasingly important role in society. It is a crucial part of the checks and balances between the Government of the day and members of the public who have not had a fair deal from a government department or local government. The court holds the Government or local government to account for misuse of powers, and ensures access to justice, accountability and good administration. The effect of these regulations is to reduce dramatically the opportunity of a member of the public to challenge a decision of government, even when that decision is patently unfair. I am talking not about pressure groups, but about individuals. If no legal aid is paid until permission is given then most of the work will have already been done, and in many cases the problem will have been sorted by the lawyers acting for the applicant.

In some of the lobbying information that I have received I was told of two cases where a lawyer sorted it long before it had to go to the judge, by giving the particular government department relevant information that the government officials had failed to look at or had not received from people who are unable properly to put their own cases forward. The absence of legal aid until the moment of the grant of permission will exclude all the cases settled and the management of many problems before the case comes to the judge. It will be a lottery, where many lawyers will not accept to do the work with the hope but not the expectation of payment, especially when the outcome may not require taking the case to the permission stage. The making of the application may itself be sufficient. This is manifestly unfair to the ordinary member of the public. In the year before we celebrate Magna Carta, we might just remember Clause 40:

“To none will we sell, to none will we deny, to none will we delay right or justice”.

That is a hollow phrase today, as many will be denied the right to have an injustice corrected by the courts.

It is very convenient for the Government to reduce the opportunity to challenge decisions made by their departments, which in itself will create a greater and greater inequality for members of the public. It makes many government decisions immune to scrutiny. That cannot be right. I recognise, of course, the efforts of this Government to cut expenditure and I applaud them for the many ways in which they have done so. But this attack on access to the administrative court is a step far too far. There must be some other way to deal with inappropriate applications. The suggestion of the noble Lord, Lord Pannick, that it should be left to the judiciary seems to be a sensible compromise. I hope that the Government will think again.

[Lord Carlile of Berriew (LD)]

I support the Motion of Regret brought by the noble Lord, Lord Pannick. In my view, the Government have brought a large blunt instrument down on a subtle and fragile part of legal tissue.

I received a briefing this afternoon from a government source in this part of the coalition who told me that it was estimated there would be a saving of between £1 million and £3 million through the provisions that we are debating. That is just about the least robust financial assessment we have ever heard in this House. If the Opposition had put it forward, I can imagine the Government’s excoriation of it.

In saying what I say, I hope that I will be forgiven for not dwelling on the interesting subject of the epidemiology of the role of Lord Chancellor. I intend to concentrate on more practical things concerning legal aid. I do so from the position of someone who still sits for a few days a year as a part-time judge in the Administrative Court dealing with exactly these cases. I thought it might inform the debate if I told your Lordships something about that role.

On a typical non-court sitting day—that is, a sitting day but in chambers—the Administrative Court judge receives a trolley containing about 12 judicial review cases. Some but by no means all—now, at least—are asylum and immigration cases. Others are on a much broader range of issues across the field of judicial review of administrative action by central and local government, the Parole Board and other public bodies. If we take those dozen cases, some—on a bad day, a majority—are wholly without merit. That phrase was adverted to by the noble Lord, Lord Pannick. I agree with the Government that legal aid should not be available or recoverable for cases that are wholly without merit. The Bar Council has taken that realistic view, too.

Some claims are most certainly brought with very little thought, no understanding of the law and just as a delaying tactic. However, some of those dozen cases, on every single sitting day, have merit. The trick for the judge is spotting them. The question here is whether the filter should be the Government, either by statutory interdiction or via the Legal Aid Agency, or the judge. I support the view of the noble Lord, Lord Pannick, that the “wholly without merit” test, applied by the judge, is by far the fairest way of dealing with these cases. It is also transparently fair. It is fair in the minds of the public. It is free of the accusation that government or politicians have taken hold of judicial review for illegitimate, political purposes.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Debate between Lord Carlile of Berriew and Baroness Butler-Sloss

Thursday 15th December 2011 Lords Chamber

[Lord Carlile of Berriew]

My Lords—

[Baroness Butler-Sloss]

My Lords—