Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Carlile of Berriew and Baroness Chakrabarti

Consideration of Commons amendments
Wednesday 20th March 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, in overturning our Amendment 6, which reinstated domestic courts’ jurisdiction, the Minister in the other place called it “unnecessary” and “wrecking”. Well, it cannot logically be both. Still, to assuage any genuine rather than confected concerns about delays in removal to the future hypothetically safe Rwanda, we now add the stipulation that any interim relief be for

“no longer than strictly necessary for the fair and expeditious determination of the case”.

This is a significant concession. Motion D1 effectively prioritises these cases above other vital work of relevant courts and tribunals; it is a genuine legislative olive branch to an Executive that have snapped all others in two. But when they go low, let your Lordships’ House go high. I shall, I hope, be pressing Motion D1 very soon.

[Lord Carlile of Berriew (CB)]

My Lords, we have some very difficult questions to answer here this afternoon, and there are many Members of this House who may not have quite made up their minds how to vote, if the opinion of the House is sought. I shall be brief. In a few moments, I shall ask a few questions of the noble and learned Lord the Minister, which may help us reach those decisions. But I hope that I speak for everyone in this House in saying that, although we may be viscerally concerned about the provisions of this Bill, we are not here just to obstruct it; we are here to make this a better Bill, in the way in which this House is set up to do.

I will reflect for a moment on the reference of the noble Lord, Lord Coaker, to the outrageous statement made by a Member of another place about compassion. If we look at this Bill and the previous related Bill together, what does this tell you about compassion? People who would, in some cases, have had a legitimate right to asylum—a legal right to asylum under UK and international law—have now been excluded from applying for asylum, even if they had been tortured in their home country, because they came here in a small boat. Compassion? Is that really compassion?

The fact they are forbidden to apply means they are deprived of all connection with the United Kingdom jurisdiction, which has an immense tradition of judicially reviewing administrative action to ensure that those who are affected by bad decision-making can, in certain restricted circumstances, obtain redress. Before I decide how to vote in these Divisions, I would like to hear the noble and learned Lord the Minister’s answer.

The Minister also referred to the cost of hotels. Well, as the noble Lord, Lord Coaker, said a few minutes ago, I think the figure is £592 million to keep 300 people in Rwanda for three years. That is £1.8-something million per head. I have not looked on the Ritz Paris website for some time—I may have had a meal there once at somebody else’s expense—but my recollection of looking at that website is that one could keep somebody in that hotel for three years, and have some money back, at the price that this process, as the National Audit Office says, will cost the country. Is this a fair and compassionate system, and is it a cost-effective one?

I turn to my second question. The Minister referred to the appropriate legislation to give effect to the treaty being already before the Rwandan Parliament—I think I cite him accurately. My understanding is that the Government accept that Rwanda is a democracy, so is the First Reading of a Bill, in our parlance, before the Rwandan Parliament, a guarantee of any kind that that legislation will be passed without amendment to give effect to the treaty? I do not see it that way. It certainly would be seen as an affront to both Houses of Parliament if Rwanda were to make that assumption about us.

My next question is this. What if our Government, contrary to their instincts, statements, wishes and insistence, find that Rwanda is, after all, as the Supreme Court found as a fact, not a safe country? Will the noble and learned Lord tell us what the Government would then do? How would they set about that problem? What would be the involvement of the monitoring committee? Who would decide that Rwanda was not a safe country after all? Would we simply have complacency, in which we just got on with the job of sending people, at £1.827 million per head, to Rwanda?

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Carlile of Berriew and Baroness Chakrabarti

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, we heard this debate opened with great clarity and legal exactitude by my noble and learned friend Lord Etherton, followed by a very good speech from the noble Lord, Lord Cashman. I am not going to go over all that again, but am I right in this simple analysis of the situation in which the Government seek to place individuals who might be affected by this law?

If I can produce compelling evidence that Rwanda is not safe for me—not my brother, but me—I am entitled to a decision from the Secretary of State, no less, or an immigration officer, that I should not have to go to Rwanda. If that decision is not made in my favour, I have all the advantage of the English legal system, through which I can judicially review the decision of the Secretary of State or the immigration officer. But if I can show that there is compelling evidence not that Rwanda is unsafe for me, but only that it is unsafe for a person like me, I am excluded from all the protection of the law, just because I cannot provide evidence that relates to me as a particular individual—who may, as it happens, not be as well-known as someone like me in Rwanda.

If that is the situation, how can His Majesty’s Government possibly justify that difference? It seems to me to be fundamentally unjust. If that is the case, I hope the Minister, who is very open with your Lordships’ House, will say so, so that the House can decide on Report how to deal with my noble and learned friend’s proposal.

[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure, as always, to follow the noble Lord, Lord Carlile. On this occasion, it is fortuitous to follow him because—without repeating the brilliant points made by the noble and learned Lord, Lord Etherton, and my noble friend Lord Cashman, about the safety of Rwanda for particular groups, which are echoed in my noble friend Lord Dubs’ amendments on religious freedom—he pre-empts a point I want to emphasise about the false binary the Government appear to be creating in Clause 4, for example.

As someone who has worked with the refugee convention for about 30 years, I feel that something is missing—well, there are many things missing, but there is something particularly dangerous about tying the hands of decision-makers in the way proposed, be they the Secretary of State, Border Force, or judicial decision-makers in particular. There is a false binary, which the noble Lord, Lord Carlile, began to outline. At one end of the spectrum, the country is particularly dangerous for Josef K, not other people in Josef K’s family or political party, or in another social group. The language of the Bill uses the following adjectives:

“compelling evidence relating specifically to the person’s particular individual circumstances”,

At the other end of the spectrum—the false binary the Bill proposes—is the general safety of Rwanda, the Bill’s definition of which includes safety from refoulement in particular. Of course, any refugee lawyer or anyone with experience of dealing with asylum anywhere in the world will tell you that, for a great many refugees, the crucial issue—forget the false binary—is membership of a persecuted social group. Those are the social groups highlighted by these amendments, but they could be other political or ethnic social groups, and so on.

On an ordinary reading of this extraordinary draft statute, I have no doubt that even this odd formulation of the specificity of the person’s “particular individual circumstances” would be construed by a court as including membership of a social group. That would be a normal reading of even this draft provision. However, because of all of that odd stuff in Clause 1 about the purposive construction the Government propose—disapplying the common law, disapplying the Human Rights Act and so on—there is now a real question mark about whether social groups are included for the purposes of Clause 4, for example.

To be fair to the Minister, in his letter, which I read, the clear indication is that social groups would be covered, because HJ (Iran) and gay people who are persecuted are alluded to. But, with respect, if that is the case, in the light of the very odd formulation of this draft statute, the noble and learned Lord, Lord Etherton, and others have done the Government an enormous favour. At the very least, they ought to agree to the amendments proposed by the noble and learned Lord. Otherwise, I fear that, because of all these straitjackets in the Bill upon decision-makers, including the Secretary of State, let alone the judiciary—we will come to it later—the Government may find that they are sending people to Rwanda in circumstances where they do not want to, and contrary to the Minister’s letter. For those reasons, I support the amendments in this group.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Carlile of Berriew and Baroness Chakrabarti

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

Does the noble Lord share the concern, that I and various committees of your Lordships’ House have, that the declaration of incompatibility, by itself and without the other remedies and provisions of the Human Rights Act, is not an effective remedy for convention rights? That is the first part of my concern.

The second part is more political: if, because of this Act, the only legal court, as opposed to metaphorical court, that still has jurisdiction to look at the safety of Rwanda—for example, for torture victims—is the European Court of Human Rights in Strasbourg, the Prime Minister will have turned courts into foreign courts. The collision course between the UK and the Strasbourg court will be determined.

[Lord Carlile of Berriew (CB)]

On the noble Baroness’s first question, I agree with the sentiments that she expressed earlier.

I will answer her second question slightly differently: I am puzzled by the hostility that some in the governing party show to the European Court of Human Rights. My understanding is that, on a weekly if not monthly basis, our Government call the European Convention on Human Rights into use to justify government arguments in individual cases. I do not understand that the Government are saying that they do not want to use the convention to their advantage anymore; it is done on a very selective basis for a small number of cases, and generally against the justice of those cases.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Baroness Chakrabarti

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I shall speak to Amendment 4 in this group, in my name and those of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Etherton. I have also added my name to Amendment 2 in the name of the noble Baroness, Lady Ludford, and I have some thoughts on Amendments 1, 3 and 5 in the name of the noble and learned Lord, Lord Hope of Craighead. Amendment 84, in the name of the noble Lord, Lord Alton of Liverpool, is partly duplicative of mine, but focuses specifically on international anti-trafficking provisions. In as far as it adds the EU anti-trafficking directive to the Council of Europe Convention on Action against Trafficking in Human Beings, I support it; however, I think we should settle on a single, holistic list of obligations that, crucially, includes the precious refugee convention and its principles of non-penalisation, non-discrimination and non-refoulement, which the Government seem so intent on violating by this obscenity of a Bill.

I turn briefly to the amendments in the name of the noble and learned Lord, Lord Hope. I thank him for his explanation earlier. Contrary to the explanatory statement for Amendment 1, I cannot quite agree that this does anything for so-called legal certainty. To the contrary, it seems a rather circular amendment, in defining “illegal migration” according to the conditions for removal in the Government’s own Clause 2. As the noble Baroness, Lady Meacher, suggested in her very pithy intervention, as a matter of international law, someone who qualifies for protection under the 1951 convention can never have been illegal.

Noble Lords who have come to the Committee sensibly armed with copies of the Bill might care to compare its Short and Long Titles. It has become quite fashionable in recent years for Short Titles to become creatures of political spin, but parliamentary counsel guard the Long Titles—so crucial for scope, for example —rather more jealously. While the Short Title is the Illegal Migration Bill, and our graveyard humour alights on the adjective accurately describing the second noun, the Long Title refers instead to

“persons who have entered or arrived in breach of immigration control”.

As the refugee convention was effectively the world’s apology for the Holocaust and the insufficient and inconsistent protection given to those attempting to escape the Nazis, the convention always contemplated some genuine refugees having to escape persecution and enter places of safety by clandestine means and in breach of ordinary controls.

That is why

“in breach of immigration control”

is accurate and appropriate for the Long Title and “Illegal Migration” is not appropriate in the context of refugees, who, as a matter of declaratory law, will always have been refugees, even before they were given their status—hence the excellent point made by the noble Baroness, Lady Meacher.

The probing Amendment 3 from the noble and learned Lord, Lord Hope, helps to draw attention to contradictions in the Government’s public positions around the ECHR compatibility of the Bill. As the noble Baroness, Lady Ludford, pointed out, the Section 19(1)(b) statement on the tin indicates one thing—that no statement that the Bill is compatible can be made—but aspects of the ECHR memorandum of ingredients suggest another. However, the medicine prescribed by the noble and learned Lord and the noble Lord, Lord Anderson of Ipswich, is far too weak a remedy. When a Government are so intent on violating rights to protection from torture, slavery and death, allowing the same Government to issue guidance on interpreting their offending legislation is like handing burglars the keys to the house. Therefore, the noble Baroness, Lady Ludford, is right to seek to remove Clause 1(5), which seeks to disapply Section 3 of the Human Rights Act, which, as we have heard, requires that legislation be interpreted compatibly with the European convention so far as possible. That is why I added my name to her Amendment 2.

Amendment 4 in the names of the quartet of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, the noble and learned Lord, Lord Etherton, and myself goes further. It does not just remove subsection (5); it replaces the whole of Clause 1 with the requirement that this legislation shall not require violation of any of the key international legal obligations that we fear would otherwise be violated by it, namely the 1950 European Convention on Human Rights, the 1951 UN refugee convention, the 1961 UN Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. I am very proud to stand with noble Lords from four corners of the Committee whose experience includes high-level legal adjudication, law enforcement, and Home Office ministerial duty. What brings the senior judge, police officer, Conservative former Immigration Minister, and human rights lawyer together around the amendment is our desire that the United Kingdom remains committed to the international rule of law.

As we heard, last week, alongside other European leaders, the Prime Minister signed the Reykjavík declaration. It begins:

“We, Heads of State and Government, have gathered in Reykjavík on 16 and 17 May 2023 to stand united against Russia’s war of aggression against Ukraine and to give further priority and direction to the Council of Europe’s work … We reaffirm our deep and abiding commitment to the European Convention on Human Rights and the European Court of Human Rights (ECHR) as the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems. We reaffirm our primary obligation under the Convention to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention in accordance with the principle of subsidiarity, as well as our unconditional obligation to abide by the final judgments of the European Court of Human Rights in any case to which we are Parties”.


Mr Sunak said:

“We remain a proud European nation. And we must work together to defend the values we all hold so dear … Because we know what we can achieve together. Just look at this Council’s extraordinary legacy: protecting human rights, abolishing the death penalty in Europe, supporting media freedom and championing democracy across Central and Eastern Europe after the Cold War”.


Those fine words from the Prime Minister must not be contradicted by the Home Secretary’s illegal Bill.

Noble Lords will no doubt explore the many violations of our common and constitutional law tradition, as well as international law, via the anxious scrutiny of this Committee. At the very least, the Bill violates Articles 2, 3, 4 and 14 of the European convention in failing to protect victims of torture and trafficking and those at risk of death, and in allowing the Government to pick and choose which refugees from different countries it finds palatable from time to time. The Bill fails to protect stateless people and children in the context of its provisions on removal, detention, accommodation and age assessment. In the words of the UN High Commissioner for Refugees, it amounts to

“an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be”.

This must be one of the strongest condemnations of a democratic and rights-respecting nation ever uttered by the commissioner.

If Ministers seek to argue that the Bill does not violate these various linchpin treaties, many of which the United Kingdom played a leading role in negotiating, they should have no problem with the requirement that the Bill be read in that way by Ministers, officials and the courts. If, instead, Ministers wish to argue that it is time to renegotiate these obligations, fair enough. Let them try to do so with such reserves of soft power as they think we have left. In the meantime, in contrast with Russia and other pariah states, let them respect the law.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Baroness. I support her Amendment 4 for the following reason. If I was a person in a country far from here who faced torture and very serious discrimination, possibly for his or her political views or opposition to the Government, or possibly for their sexual orientation which is an issue in quite a number of these cases, I might look up what the United Kingdom stands for in international law before I make my decision as to whether to seek asylum in the United Kingdom or some other country. And what would I read? With a couple of clicks on the internet, I would read exactly what is set out, or aspired to, in Amendment 4 tabled by the noble Baroness. In my view, that is the principled position to take.

I also understand completely—I think—the views expressed by my noble and learned friend Lord Hope when, if I can be permitted to use a little bit of transatlantic language, he pointed out certain uncertainties about the Bill in the speech with which he opened the first debate.

I want to challenge the Minister to do something he has failed to do—I say this with respect, because he is known for his clarity in this House. I challenge him to return to the very first page of the whole Bill, where the statement under Section 19(1)(b) of the Human Rights Act is set out. The first sentence reads:

“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes … to proceed with the Bill”.


Does that mean, “I don’t know if the provisions of the Bill are compatible with the European Convention on Human Rights”? Does it mean, “I know that it is not compatible with the European Convention on Human Rights”? Or does it mean that some parts of it are compatible with the European Convention on Human Rights and others are not?

Public Order Bill

Debate between Lord Carlile of Berriew and Baroness Chakrabarti

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

I apologise in advance to the Ministers for making their ears bleed. A lot of what I have just said is relevant to this group as well. In previous hours in this Committee, noble Lord after noble Lord from around this Committee—from the Benches opposite, the Cross Benches, lawyers, lay people, people concerned with the balance between peaceful dissent and other rights and freedoms for the rest of the community—has been really concerned about these new offences and the justification for them. There was a real consensus that it is for the Government of the day, and those who propose new restrictions of whatever kind on liberty, to make the case. Particularly when we are talking about coercive police powers at a time when there has been a bit of a crisis of trust in the police, which is not what we want, it is really important that the justification for new offences, new police powers and so on be made before we sign these blank cheques. It is no disrespect to the police. Every day that I come into this place, I am grateful to our wonderful police, who stand out there and protect us all as legislators. I am so grateful to them. Of course, it crosses my mind that I am criticising expansive police powers and so on, but I still feel that is my duty.

I will not take up too much time, but the case for these new offences has not been made by the Government. I tried to make my point in response to the debate on the previous group. We need a statement from Ministers about the existing public order statute book, what these existing offences and powers do and do not do, and what the gaps are thought to be, so that noble Lords in this Committee, including the noble Lord, Lord Carlile of Berriew, who knows a little about the criminal law—he and I have debated it over many years; sometimes we have agreed and sometimes we have disagreed—can bring their minds to this schedule, which hopefully the Government will provide, and ask, “Is there really a gap?”

That has not been done to date, despite the fact that these measures are largely defrosted and reheated from a previous Bill and have been through the elected House. That forensic case, that examination of the existing statute book and where the gaps are, has not been made. I do not vote on people’s liberties to protest, whether I agree or disagree with them, unless I see the case being made. That is why I have taken the step of opposing so many of the clauses—and I apologise if that seems rude in any way.

Make no mistake: I would be doing this if it was my party in government or whoever’s party in government. Sometimes, when it comes to civil liberties, whoever you vote for, the Government get in. As legislators we have duties to be a little more careful and forensic before adding to the very expansive public order statute book, with people concerned for their basic protection—yes, from each other, but also from abuses of power. With that, I do not have to say anything more.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti, and in the widest sense I agree with her—but I come at it from a rather different angle. I am concerned about the integrity of the legal process.

I do not want to repeat what I said earlier. The Minister heard me referring to a very recent statute that came into force in August, I think from memory, which in my view covers all the conduct we are considering here. One has to consider the effect on the legal process of having different provisions, with very different consequences, which are not alternatives to one another; they have to be charged separately. It is not like wounding with intent under Section 18 of the Offences against the Person Act, where Section 20, unlawful wounding, is always an available alternative. These are quite separate offences, in totally separate Acts of Parliament, separated by a little time—though oddly, in this case, if the Bill is enacted, both introduced in the same year by the same Government.

We have to think about the way the process operates. The biggest Crown Court in London has a backlog, partly because of Covid, of nearly 4,000 cases, and we should consider the case management that is placed on the judges there. I have a particular interest in that Crown Court, which I place on the record. My interest in that court leads me to the view that the judges, the prosecutors and probably the defenders there are unlikely to be aware of the alternatives. However, as I suggested earlier, in another Crown Court another charge might be brought under the other Act of Parliament, and the judges there would know about the offences with the lower imprisonment maximum but would not know about the other statute. We will end up with a crowded calendar, with the Court of Appeal eventually having to say, “Why do we have two Acts of Parliament that deal with the same conduct but have totally different consequences?” I am sure that the noble Lord, Lord Ponsonby, who is an experienced, busy and highly regarded lay magistrate, has similar experience of backlogs in the courts in which he sits in London, and the same is true in all the cities around the UK.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Baroness Chakrabarti

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord German. I know that he has an immense amount of experience in matters around education, from both his personal experience of teaching in earlier decades and his work in the Welsh Assembly Government. I probably support his amendment, but I am much less interested in the amendments here than in achieving a shared purpose, which is that children who are in custody have the chance of a quality education which will enable them to go on to higher education, where appropriate, good apprenticeships and other forms of training which will give them a decent chance in life—most of them not having had a chance in life. I am afraid it is a truism, at least in my experience of visiting many institutions holding children, that for many of them, that institution is the most comfortable and secure place, emotionally, that they have ever lived. That is a sad commentary on their situation.

I carried out some voluntary work for the Howard League some years ago, and it involved visiting Oakhill, Rainsbrook and, indeed, Feltham—a place which has been through good and bad patches over the years but, from what I hear from people who work there, is at the moment pretty challenging and not providing children with a particularly good education.

The ambition that we surely all share is that there should be a consistent level of good education throughout those institutions. I will give an illustration of why. When I was doing the voluntary work for the Howard League, of which the current president is another Member of your Lordships’ House, the noble Lord, Lord Macdonald of River Glaven—I am very happy to see him in that role—I went to one of the institutions that I have named. I was taken around and a boy of about 16 asked me to go into his room, as he called it. I went into his room and all over the wall there were maths certificates, including a grade A GCSE maths certificate. I said something really silly like, “You must be very good at maths.” He said, “I love it, sir. I want to be a maths teacher when I leave this place.” I do not know what happened to him, but he certainly had the ability to be a maths teacher. The reason he got that maths GCSE was because there was one really inspired teacher in that institution who spotted his talent at maths and had taken it to that level. I said to this boy, “Did you like maths when you were at school before you came here?” He replied, and I will never forget these words: “I never went to school, sir.” The capacity of education in these institutions and the opportunity it provides are enormous, but it has to be consistent.

Charlie Taylor, who has been referred to in this debate, did some very valuable work. I was very fortunate in that I was a consultee for him from time to time. He absolutely shares the views I expressed in the last few minutes. I ask the Government to accept that the ambitions I have expressed are shared by the Government too and that, whatever we call these institutions, whoever runs them—I do not really care, to be frank, as long as they reach the requisite standard—will try to reach standards that have been reached in the past. Noble Lords will remember Peper Harow, which was a very fine institution run in the voluntary sector by a number of trustees who would have been familiar in some way or another to Members of your Lordships’ House. It came to a slightly abrupt end because there was an accident there, but people who left Peper Harow, having had their education, commonly went straight to university and achieved university degrees, or did other training that gave them a good life after custody.

I say to the Minister: please can we have an assurance that we are not getting bogged down in process and the name we give to these educational institutions, and that we are actually trying to achieve a gold standard of quality with young people who are bored of being in an institution and for whom education is a really welcome change if it is good enough?

[Baroness Chakrabarti (Lab)]

My Lords, I am sorry, I was looking around the Chamber to see who was poised and trying to be too polite. It is an absolute pleasure to follow the noble Lord, Lord Carlile of Berriew, who many members of the Committee will associate with his legal expertise, but it is to be remembered that he has a considerable track record, to say the least, in matters of penal reform.

It is also a pleasure to have my name associated with this amendment in the names of the noble Lords, Lord German and Lord Marks of Henley-on-Thames. It seems totally anomalous that local authorities should be excluded from giving this provision, for all the compelling reasons given by the noble Lord, Lord German, about the expertise that they have accumulated in relation to education, children, care and so on. It can be only an ideological justification—I must not be too smug about ideology because I have a little of my own. Although there are always political debates about the role of the state in relation to all sorts of goods and services, most people, across politics and across the Committee, have some sort of notion of the irreducible core of the state. Personally, I think that, as with policing and the Army, incarceration ought in general to be a primary responsibility of the state itself, for obvious reasons to do with the vulnerability of those incarcerated and the responsibility, including democratic responsibility, of politicians, whether at local or national level, in relation to powers of coercion and the incredible vulnerability of people who, of course, cannot even vote.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Baroness Chakrabarti

Lords Hansard - part one & Committee stage
Monday 25th October 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I apologise for not having taken part in the Second Reading debate, when I was unavoidably abroad for professional reasons, or in the first Committee day, when unfortunately I was recovering from coronavirus—an experience I would not recommend to any of your Lordships given my experience of it. I rise to speak having very much enjoyed the speech by my noble friend Lord Patel, because I thought he introduced an element of balance that had not quite reached the debate in the earlier moments, eloquent as the introduction from the noble Baroness, Lady Brinton, was.

I will cite two pieces of my own experience as evidence. I spent 10 years as a lay member of the General Medical Council and, during those 10 years, sat successively on the health committee and the conduct committee. The health committee is a form of conduct committee, but with an obvious emphasis, as its name indicates. We spent a great deal of our time discussing whether doctors can be fully relied upon at all times, and in particular at critical moments, to understand the limits of the duty of confidentiality. Because it is not an absolute duty; there is a balance between the private rights of the patient and the general duty of the doctor not to disclose information, and the public duty of the doctor to disclose information if there is, for example, serious danger of violence to the public. I fear that more work will be needed on the amendments being proposed at the moment if that balance is to be sustained.

My second piece of evidence relates to an inquiry I conducted in 2012 for the then Secretary of State for Education, which related to something called the Edlington case. The brief story was that two small and neglected boys, who were fractionally over the age of criminal responsibility, nearly killed another child in a wood. Fortunately, that child and their companion survived—one of them only just. In my inquiry, I looked at the sharing of information by a host of organisations—schools, general practitioners, social workers and so on. It was a clear conclusion of my report that, if key information had been shared, the child who nearly died would not have been assaulted, the two very unfortunate little brothers who committed the assault would not have spent the succeeding years of their lives in a custodial institution and the schools would have been able to create a situation in which the dreadful problems for everybody concerned did not arise. One of the key issues in that case was that the general practitioners did not fully understand the balance between their duty to the public and the rights of their patient—and near-disaster ensued.

To noble Lords moving these amendments and to the Minister, who I know listens to these debates extremely carefully, I say that this is not the time for people to take up closed positions on these matters. There is a lot of work to be done. I think my noble friend Lord Patel probably agrees with this, but I speak with great trepidation, because right in front of me are two of the most distinguished doctors in the whole country. We must ensure that, where it is necessary as a public duty, they and others need to be consulted to ensure that the balance is right and is therefore not the subject of the controversy we have been hearing about already this afternoon.

[Baroness Chakrabarti (Lab)]

My Lords, I do not disagree with the noble Lord, Lord Carlile, but I none the less think that the noble Baroness, Lady Brinton, and her colleagues are on to something. There is no question but that the noble Lord, Lord Carlile, is right that, under common law, doctor-patient confidentiality is not and has never been absolute. The question is when it is trumped by other considerations, and who decides.

It is always dangerous to suspect what the Minister will say in her eventual reply, but I suspect that she will say reassuring things, and her colleagues will have given her reassuring things to say, about the intention. I am sure that the intention is not for the wholesale trumping of doctor-patient confidentiality. There is no public interest in that and the Government would not want people to take that as the case, because it would be completely counterproductive not just to the effective functioning of public health but to law and order. To give an obvious example, if everyone involved in knife crime feels that there will be no confidentiality whatever in the emergency room or elsewhere, one runs the danger of people not going to get the vital help and emergency care that they need. I know that the Minister will understand that.

Going back to the detail—as this is Committee—when should there be a trumping and who decides? That is a worthwhile, detailed conversation to be explored between organisations such as the General Medical Council and the Minister and her team. Because, while it may not be the Government’s intention to trump common-law principles of ethics and confidentiality en masse, we have to remember of course that statute displaces the common law. If the statute is unclear and people think or perceive that the common law has been trumped and that the decision has been taken completely out of the hands of an individual practitioner on the advice of ethical bodies or ultimately taken out of the hands of a judge and that the principles of confidentially have been totally trumped, we have a problem—and that means the Government have a problem as well.

So I hope that, when the Minister eventually replies to this debate, she will not reject these concerns out of hand and will take on board the possibility of a bit more detailed discussion about when the duties to collaborate and so on should trump confidentiality, when not and, crucially, who is to decide. For my part, I would favour practitioners, properly advised, perhaps by more and further guidance from their professional bodies, and, if necessary in individual cases, by the order of a judge, possibly sought on an ex parte basis, as opposed to anything too wholesale or administrative. That is just my suggestion. I am sure that the Minister and her team will be able to come back with something that meets the concerns of the noble Baroness, Lady Brinton, and her colleagues before the next scrutiny stage of the Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Carlile of Berriew and Baroness Chakrabarti

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.

I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.

Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.

[Lord Carlile of Berriew (CB) [V]]

My Lords, the noble Baroness, Lady Chakrabarti, always expresses herself firmly and persuasively. That said, I am afraid I could not agree with her less about this legislation. I support the passage of the Bill and want to thank the Minister, the noble Baroness, Lady Williams, who has been both consultative and a very good listener. She has also shown that she is prepared to move on important issues. Far from what the noble Baroness, Lady Chakrabarti, said, the Bill puts CHIS on a solid, statutory footing.

It has improved the way in which CHIS are to be dealt with by creating a clear process, all of which is legally enforceable and accountable. The code of practice has been mentioned less frequently in our debates than it deserved. It is absolutely required reading for all who are involved, or perhaps even interested, in how CHIS are handled in this country. One thing to be emphasised about the code of practice is that because it is a code rather than an Act of Parliament, although it has the force of law, it is a living instrument which can be changed as needs must.

The Bill will make a beneficial difference for the authorities, for the CHIS themselves and for public safety. With the changes that have been made, which have been difficult and creative at times, I commend it to the House.