Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord Lilley (Con)]

My Lords, can the noble Lord explain why our courts, and our officials acting under their duties, reach such different decisions from the courts and officials on the continent? Why do we reject only 25% of claims for asylum, whereas France rejects 75%?

[Lord Paddick (LD)]

My Lords, this is Report and that intervention is not appropriate, I am afraid.

[Lord Carlile of Berriew (CB)]

Whether it is appropriate or not—and I tend to agree with the noble Lord, Lord Paddick, on that subject—it seems to me that the noble Lord who just intervened has made a very selective judgment without analysing the continental cases that have taken place. I have given a fair description of what happens in our jurisdiction; it is the one that I regard well, and I hope that your Lordships will too.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I will speak in support of both my noble and learned friends, who sit to my right in the Chamber. I am particularly grateful, as I think the whole Committee is, to my noble and learned friend Lord Etherton for the very clear exposition he gave of the law and of the consequences of these provisions which change the law.

I will put my very short analysis of this into “faults” and “conclusions”. Clause 38 is word soup, full of tautology and contradictions—the sort of thing that makes fortunes for lawyers if they can get in front of judges, like my noble and learned friends in the very senior courts, and make esoteric arguments based on an analysis of the text. The word soup is most certainly not a consommé clarified by the use of egg whites, so that you can see through it to the bottom of the bowl. It is more like a sort of mad minestrone, into which the draftsman has thrown every word vegetable that he or she could find.

Let us look at Clause 38(3), where the “serious harm condition” is in inverted commas. I was taught at school never to use inverted commas, if you could avoid it, because they show a weakness in your argument, unless it is a quotation that someone said. It says:

“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a real, imminent and foreseeable risk”.


Supposing we missed out the words “real, imminent and”, what difference would it make if it simply read,

“before the end of the relevant period, face a … foreseeable risk of serious and irreversible harm”?

If one missed out the words “and irreversible”, would it mean less if it read:

“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a … foreseeable risk of serious … harm if removed from the United Kingdom”?


What are they trying to gain by the word soup—the possibility of making bizarre submissions in front of the senior courts in which my noble and learned friends sat?

After those comments, if you were asked, “What does all this mean?” by a lay man who might be up at 10.10 pm looking at parliamentary TV or parliamentlive.tv and fascinated by every word in this debate, you would say to him, “Just go and have a look at Clause 38(5)(c)”, which refers to

“where the standard of healthcare available to P in the relevant country or territory is lower than is available to P in the United Kingdom”.

They—or at least those who were well informed enough to be sitting up at 10.10 pm, watching parliamentary TV—would immediately say, “This is deliberate discrimination against gay men”. What else is this for?

We should be ashamed of ourselves if, at least when it comes to Report, we allow this kind of provision to remain in the Bill and do not help my noble and learned friends to pass their amendments. But I hope that we do not have to reach that stage, because this word soup should seem as ridiculous to our noble friends the Ministers as it does to some of us.

[Lord Paddick (LD)]

My Lords, this has been an interesting, if not bewildering, debate—at least to us non-lawyers. My lay interpretation of the provisions we debated in this group is that they highlight the danger of asylum seekers being removed to countries where they could come to harm by making the level of proof required to suspend removal so high, and by making the evidence required to prevent their removal so compelling—within impossibly short timescales—as to make the likelihood of a successful claim diminishingly small. If it turns out that it is not diminishingly small enough, the provisions allow the Secretary of State to redefine what “serious and irreversible harm” means to make sure that the tap is turned off almost completely.

The noble and learned Lord, Lord Etherton, questioned whether such an approach is compatible with existing law. It is quite clear what the Government are trying to do here: make it impossible for anyone to resist removal from this country under the provisions of the Bill. That is why we do not believe that Clauses 37 to 42 should stand part of the Bill.

Public Order Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

If I am to be corrected, I am, but may I just offer a view? It is an offence to wilfully obstruct the highway. Of course, if you obstruct it because a person in your car is having a heart attack and needs attention, there will probably be a reasonable excuse for the obstruction and that is a defence. However, it is a summary offence to obstruct the highway, punishable by imprisonment.

[Lord Paddick (LD)]

Before the noble Lord continues, I ask him to point to the provisions in this Bill that make up for the problem relating to highway obstruction that the noble Lord, Lord Hogan-Howe, identified. Having read this in detail, my understanding is that nothing in the Bill addresses the noble Lord’s concern. Therefore, the question remains: why are we discussing this?

Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I rise to support the original amendment, moved so ably by the noble Baroness, Lady Newlove, and to oppose the amendment to the amendment from the noble Baroness, Lady Noakes, which she moved just now. I hope she will forgive me for saying that her introduction of her amendment displayed a great deal of confusion, which is being much magnified in debate, about the differences, in so far as they exist, between the words “sex” and “gender”.

Gender is causing no confusion in the law, but I would urge the noble Baroness and others to take the trouble to have a look at the first legal textbook written on this subject, called A Practical Guide to Transsexual Law; it is authored by Robin White of Old Square Chambers in London, who is a trans woman herself and extremely expert in cases arising from trans issues, and her colleague in the same chambers, Nicola Newbegin. If noble Lords are suspicious about a lawyer in your Lordships’ number recommending the reading of a legal textbook, I reassure them that it is not because I want to make them go to sleep while doing their reading before they go to bed at night; it is actually one of the most fascinating textbooks written in recent years—and it has the virtue of being short as well.

The issues described in that book, which have interested me since I introduced the first transsexual rights Bill in the other place when I was a Member there, have evolved greatly over the years. I would say to those who are suspicious or uncomfortable about these issues that young people—people born after 1995, to date at random—they do not understand the problem. To them, trans people are included among their friends, and it is “just a thing, not an issue”, to quote one of my own daughters on the subject. It is becoming increasingly common for young people to move in circles where trans men and women, and, for that matter, gender diverse men and women, are absolutely standard parts of the community.

The Equality Act, which has been in existence for a considerable time, says that you must not be discriminated against because of your gender reassignment as a transsexual and that you may prefer the description “transgender person” or “trans male” or “female”. There is much more I could read out to your Lordships that illustrates that the law has been in place and has been well understood for a long time.

Let us just consider what the noble Baroness, Lady Newlove, is trying to achieve in subsection (3) of her proposed new clause. I need to confess a sort of interest at this point, in that I am married to a circuit judge who tries criminal cases only. So perhaps I have a little bit more evidence in my mind—she certainly does not agree with everything I say, by any means— on how judges behave not just from my own practice but from a lot of discussion about these issues. The amendment provides:

“A court considering the seriousness of an offence … must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor when determining a sentence.”


Can one seriously suggest that a circuit judge, or a magistrate for that matter, does not understand what that means? If the judge understands what that means, surely it is as just as any other aggravating factor.

Let us look at it down the other end of the telescope. Five or six young women go out for a night out, and during the course of that night out an offence takes place in which there is hostility or prejudice towards the one of them who is a trans woman. Would it really be right for the other five to have an aggravated sentence brought upon the offender, if the hostility was towards them as women on the grounds of sex, but not that trans woman, if the hostility was shown to them on the grounds of gender? It is a nonsensical suggestion, and what is in the noble Baroness’s proposed new subsection (3) is just common sense—the sort of common sense that judges apply in the courts every day. So I would urge your Lordships to take the view that the use of the phrase “sex or gender” in this amendment is just good 2022 common sense and, if one is minded to support the amendment, one should support it in its original form.

[Lord Paddick (LD)]

My Lords, I want to take a slightly different view of this. We support misogyny being treated as a hate crime and, personally, I do not understand the arguments of the Law Commission in relation to domestic violence and sexual offences. The same objections could be made to existing hate crimes such as homophobia, but they exist alongside these serious offences without difficulty. I wonder whether proposed new subsection (4) in the amendment is necessary.

May I suggest an alternative way out of the gender debate? I wonder whether, in line with the Law Commission’s report on hate crime in relation to other aspects of hate crime, the words in brackets—“or perceived sex”—should be added to the word “sex” at the end of new subsections (1)(a) and (1)(b) proposed by the amendment. I am thinking of the following hypothetical example. A man who shouts demeaning and derogatory terms for a woman, indicating a hatred of women, and who without provocation attacks a stranger in the street, indicating that the attack is motivated by a hatred of women, should be charged with the aggravated misogyny offence, whether the assailant is mistaken in identifying the victim as a woman or not. It should not matter whether the victim is a woman or not; it is the motivation of the attacker that is important. If that motivation is hatred of women, it should be an aggravating factor.

However, despite my concerns about the wording of the amendment, we have waited long enough for this important and necessary change in the law. Any defect in the wording of the amendment can be addressed in the other place, and if the noble Baroness divides the House, we will support her.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, if domestic abuse is now included in the serious violence duty—and there is no more serious violence than murder—can the Minister say how the Government can resist this amendment, which we support?

[Lord Carlile of Berriew (CB)]

My Lords, if I may just say a few words in support of this amendment, which was moved with such clarity by the noble Lord, Lord Ponsonby, two points seem to me to arise. The first is that if the reviews are held in a centralised way, they will be more efficient. There will be less of a postcode lottery when it comes to the review taking place. Secondly, and most importantly, if social services, medical services, the police and others know that there will be a review in every case in which there is murder as a result of a domestic situation, they will take greater care. We know that that has not, unfortunately, always been the case, whatever their good intentions.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I also rise to speak particularly about Amendment 292D. I support the noble Lord, Lord Bach, with all his experience of being an excellent police and crime commissioner.

There are many other examples. The noble Lord gave two. I shall just give one. A 59 year-old senior civil servant who worked for the Ministry of Justice in a responsible position connected with the criminal justice system, wished to retire and stand to be a police and crime commissioner. He was disqualified because, at the age of 13, he had been fined £5 for each of two minor juvenile offences. It is completely disproportionate and absurd that such people should be disqualified.

I seek to compare those disqualification rules with the rules applying to Members of another place. The last figures I saw produced by IPSA, the standards authority for Members of the other place, revealed that, in recent years, 43% of the Members of the other place had convictions of one kind or another. Maybe that tells you a lot about the other place. Nevertheless, this distinction makes its own point.

In passing on to the other issues, I agree very much with my noble friend Lord Hogan-Howe. Fundamental to this problem is the fact that we have 43 territorial police forces. This number ought to be at least quartered. If so, the structure—including police and crime commissioners—would be much more coherent. There would be far greater consistency and police forces which currently struggle to deal with very complex inquiries would be able to deal with them because they would have the critical mass of staff.

I turn next to police authorities. I hesitate to disagree with those noble Lords who tabled the first amendment in this group because I respect them all. Part of my experience as a Queen’s Counsel has been to advise police authorities when they have got into difficulties. I recall one case from the north of England in which the police authority concerned was institutionally corrupt and in the pockets of a small group of senior police officers. It had got itself into a hopeless mess and at least one criminal prosecution ensued. To describe it as an example of democratic effectiveness was an insult to both democracy and effectiveness.

I accept, of course, that some police commissioners are better than others. So are some Cabinet Ministers. So are some head teachers. So are some doctors. So are some Members of Parliament. This is inevitable. Some of the commissioners are very good, such as the noble Lord, Lord Bach, and Dame Vera Baird, who was referred to earlier. Where police and crime commissioners are effective, they are very effective indeed.

Just think about it territorially. If one of these referendums took place and there was a police and crime commissioner in Cheshire but not in Lancashire, or one in north Wales but not in Dyfed-Powys, people in the areas that did not have a police and crime commissioner would be unlikely to say, “Oh, how wonderful; this is going to be run by our local council.” In the modern world, they will say, “Our democratic rights have been diluted.”

Other noble Lords remember, as I do, when the Welsh Assembly was created. In many parts of Wales, people said, “Nobody will know who their Assembly Members are. It’s all a waste of time. It will be completely ineffective.” It is true that, for a time, people tended not to know who their Welsh Assembly Members were. Today, however, if you look at the evolution of the Welsh Government during the last 20 years or so, it has become remarkably effective. It has brought people much closer to government.

I believe that police and crime commissioners are still evolving. They have a valuable role to play, particularly, as I said earlier, if the Government have the courage to reform the territorial policing services in this country.

As to the deposits, I agree with the noble Baroness, Lady Jones of Moulsecoomb. The £5,000 deposit is not reasonable. I would not oppose a much lower deposit of the kind that has to be put down by somebody standing to be elected as a Member of Parliament. The election process is expensive. Some kind of gatekeeping requirement of this kind is helpful.

[Lord Paddick (LD)]

My Lords, with the greatest respect to the noble Lord, Lord Carlile of Berriew, when he started talking about amalgamating police forces again and the Welsh Assembly, I wondered whether this was turning into a filibuster. However, we move on.

The issue raised by Amendment 292D that we all agree on is that it is ridiculous that somebody convicted of a very minor offence at a very young age should be disqualified. The other side of the coin is that there is no process for the recall of a police and crime commissioner who commits an offence in office or is guilty of misconduct. Because they are democratically elected, the only way to get rid of them is by another election. Compare this to MPs, for whom there is now a process by which a by-election can be triggered. I agree with Amendment 292D, but there is another side to the same coin which also needs to be addressed.

We on these Benches have always been opposed to police and crime commissioners, notwithstanding, as everybody has said, that there are some outstanding ones, as the noble Lord, Lord Bach, was. Not just because he used to be my boss—this is the House of Peers now—I agree with almost everything the noble Lord, Lord Hogan-Howe has said.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Paddick (LD)]

Forgive me for the delay, my Lords—so many amendments, so little time, as it were.

I am grateful to Transform Justice for its briefing on this issue and for its assistance in drafting this amendment. Currently, simple cautions with no conditions attached are considered “spent” within the meaning of the Rehabilitation of Offenders Act 1974 as soon as they have been given. This means that they do not have to be disclosed to potential employers. The Government propose to abolish simple cautions, so those who would previously have received a simple caution, which do not have to be disclosed, could potentially receive a diversionary caution, which, like conditional cautions currently, have to be disclosed for three months after the caution is given. Given the Government’s commitment to reform rehabilitation periods elsewhere in the Bill, we suggest that the rehabilitation period for diversionary cautions should be removed. In Part 11, Clause 164 already sets out various changes to the rehabilitation periods for different sentences. Removing the diversionary caution rehabilitation period should be added to the list of those changes.

The Government argue that a three-month spending period is required for a diversionary caution to support protection of the public. There is strong evidence that employment is one of the most, if not the most, important factors in enabling people to cease offending behaviour and to move on to crime-free lives as productive members of society. A three-month rehabilitation period is short enough to have little impact on public protection, but its existence will require people in employment or seeking employment to declare the caution and risk losing their job or be refused employment. It will also act as a barrier to those seeking education and volunteering opportunities. Research has found that employers discriminate against people with criminal records and that most do not differentiate between a caution and a conviction. Introducing a spending period for the diversionary caution will therefore hamper people’s efforts to gain employment while doing little for public protection. Diversionary cautions should follow the spending regime for the existing simple caution and end at the point at which the caution is given. I beg to move Amendment 189ZA.

[Lord Carlile of Berriew (CB)]

My Lords, I support the noble Lord’s amendment. If I may, I will elasticate the rules of order slightly by referring to some other issues relating to the spending of cautions and of convictions.

In 2013 and 2014, an ad hoc committee of Members of this House and of the other place reported, sponsored by the National Children’s Bureau and the Michael Sieff Foundation, on the youth courts. I was part of that group, as was the noble Lord, Lord Ponsonby, who was very valuable member, and as was a certain Back-Bencher called Robert Buckland, who later became Secretary of State for Justice and Lord Chancellor. To be fair to him, despite having gone to the other side of good behaviour by becoming a member of the Cabinet, he always remained personally committed to what we had found. Our second recommendation was this:

“Children who have committed non-serious and non-violent offences, who have stopped offending, should have their criminal record expunged when they turn 18.”


I believe that that is a very important principle for which there is supporting evidence around the world. I am disappointed that the Bill is a touch pusillanimous in not picking up that recommendation—and I am grateful to say to the Minister that a number of our recommendations have been picked up.

If the noble Lord were to speak to Charlie Taylor, who held a very important position in the Ministry of Justice at that time, as chairman of the Youth Justice Board, and who is of course now Her Majesty’s Chief Inspector of Prisons, he would find that he is also very supportive of that recommendation, with his huge experience of dealing with young people, first as a teacher and then in the criminal justice sphere.

Counter-Terrorism and Sentencing Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

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

My Lords, the town of Tredegar is noted for its town clock, which was erected, or at least its plinth was, as a result of funds collected at a bazaar. I believe that information to be correct—and from my position in my home I think I can see the noble Lord, Lord Wolfson, nodding in agreement with those facts. The Tredegar clock is always regarded as a symbol of the stability of the town—a town that has been through thick and thin, having been a place where coal was mined and steel manufactured.

The Parole Board has become one of the pillars of our prison system, and the board is seen as being as reliable as that town clock as it has developed over the years. I therefore join the noble Lord, Lord Ponsonby of Shulbrede, in being really rather determined to persuade Ministers that they should take another look at the role of the Parole Board in the sentencing and licence provisions provided for by this important Bill, which I support in principle, as someone who believes that the sentences for terrorism should be long but subject to a proper, just and reasonable form of review that gives reasons if it finds against a prisoner.

I am happy to support the amendment tabled by the noble Lord, not for its content but for the principle that it raises, and I invite the Minister to reflect accordingly.

[Lord Paddick (LD) [V]]

My Lords, I apologise for any inconvenience caused by my noble friend Lady Hamwee and me not speaking in the last group, where our names were included in the speakers’ list in error.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, addresses the serious question of the impact on prisoners who have no prospect of being released early or of being released at all, something that the noble Baroness, Lady Prashar, spoke about in an earlier group, as did my noble friend Lord Marks of Henley-on-Thames.

Some indication of the potential impact comes from a report in the Times, dated 20 January 2021, on inmates at the only remaining isolation unit for extremist prisoners in Her Majesty’s Prison Frankland. These isolation units were designed to keep the most dangerous ideological prisoners away from the general prison population so that they could not radicalise vulnerable inmates, as other noble Lords have mentioned in today’s debate. One of those units was mothballed before it was opened, another is empty, and the one at Frankland houses five prisoners out of a capacity of eight. There are currently about 200 terrorist prisoners in the UK.

According to the Times, a report by the independent monitoring board at the prison says that inmates in the unit have become more entrenched in their views, that they are refusing to co-operate or to engage in activities and programmes—except for the gym—and that they are distinguished from other prisoners by a lack of progression. They display antagonism and hostility to staff, with one of the prisoners responsible for a serious assault on a prison officer in the centre.

Locking people up with no incentive to behave or co-operate is likely to be counterproductive, and the Times report supports that assertion. We support the amendment.

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Report: 2nd sitting (Hansard - continued): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Monday 17th December 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I rise to support the amendments in the name of the noble Lord, Lord Anderson of Ipswich, to which I have added my name. I really am intrigued to hear what the Minister will say about the fact raised by the noble Lord that at least 14 organisations still proscribed by the Government are not involved in terrorism and are therefore effectively proscribed illegally. The noble Lord’s amendments are designed to rectify that situation, requiring the Government to take action once a review has determined whether organisations currently proscribed should be proscribed or not.

It is not just a question of the organisations themselves; going back to previous measures in the Bill, anybody who supports these organisations could be convicted of a criminal offence, even though they are supporting an organisation that should not legally be proscribed. I am also very interested to hear from my colleagues on the Labour Front Bench why they would not support these amendments were the noble Lord to divide the House. We certainly would support him were he to test the opinion of the House.

[Lord Carlile of Berriew]

My Lords, the first thing to say is that organisations can apply to be de-proscribed; that should be on the record in this part of our debate. As I understand it, only one organisation has applied to be de-proscribed in recent years: the People’s Mujahedin of Iran. It was de-proscribed. The decision before the Proscribed Organisations Appeal Commission, or POAC, was contested on appeal by—

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I will not go over the arguments again. The noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Hamwee made clear the points that the Supreme Court had concerns about in the case of Choudhary and that the Joint Committee on Human Rights expressed regarding the provisions in the Bill.

Of course, these are two separate amendments. They propose either something more definitive than “is supportive of”, or, if you keep “is supportive of”, that there should be a degree of intention. I saw the Minister nodding vigorously when the noble Baroness, Lady Jones, suggested that Amendment 2 would actually be no change from the status quo and therefore would in effect nullify the provision, and I have some sympathy with that, but these are two separate amendments and therefore can be taken separately.

In response to the noble Lord, Lord Harris of Haringey, yes, one can see how this is constructed so that an ingenious speaker might wheedle their way through and evade justice, but the problem that my noble friend has identified is that a naive 13 year-old who innocently makes a remark would be caught by this. I accept what the noble Lord, Lord Carlile of Berriew, says about the CPS code of charging but that would not stop that 13 year-old being arrested and detained by the police. I will come back to this theme when we debate the next group of amendments. I do not want to develop that argument now.

[Lord Carlile of Berriew]

I say this with great deference to a former senior police officer, but surely the arrest conditions would not apply to that 13 year-old and the arrest would therefore be unlawful. The police cannot arrest unless the arrest conditions apply, and one is necessity.

[Lord Paddick]

I am grateful for the noble Lord’s intervention but, as I say, I am not going to address that point now but in the next group. However, we feel that it is necessary for one or other of these amendments to be adopted. Therefore, if the noble Baroness, Lady Jones, decides to divide the House, we will support her.

--- Later in debate ---

[Lord Carlile of Berriew]

The noble Lord has read out only part of the grounds for arrest. There has to be a necessity for arrest. If he is going to read out the arrest conditions to your Lordships’ House, he should read them all, because necessity is essential.

[Lord Paddick]

I know that I am taking my life in my hands by arguing with a lawyer, but I believe that the noble Lord is referring to the Human Rights Act, which requires necessity and proportionality before the officer exercises the power of arrest. However, under the Police and Criminal Evidence Act, the constable can arrest somebody if they have reasonable cause to suspect that they may be about to commit an offence—which is what I have just said.

The advantage of legislating this way round, as proposed in the amendments, is that, if people are visiting sick or dying relatives, or are aid workers or journalists and have a genuine reason for travelling, they will not be committing an offence and will not be unreasonably deterred by the fear that they may be arrested, either on their way to or their return from a designated area.

[Lord Carlile of Berriew]

I am sorry; I cannot let this pass. If the noble Lord were to look at Section 110 of the Serious Organised Crime and Police Act 2005, he would find that one of the arrest conditions is that there has to be a necessity. Section 110(4) includes the words,

“exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question”.

That is why reasonable suspicion is not a sufficient ground for arrest—and we need to be clear about that.

[Lord Paddick]

Sadly, I do not have the legislation in front of me, so I cannot comment. No, I will not accept the noble Lord’s offer of taking his iPad to look at the legislation. I do not think that that is reasonable in all the circumstances.

If we accept that this is a reasonable way to approach the issue—that someone does not commit an offence if they have a reasonable excuse—what, then, is the difference between that and a journalist or academic being able to access material on the internet? They would be safe in the knowledge that, provided the purpose for visiting a website containing information that might be of use to a terrorist was reasonable and legitimate, they would not commit an offence.

I argue that the only difference is that here someone is entering into or remaining on a designated website rather than a designated area. Websites that contain information that might be of use to a terrorist are, if you will, designated areas of the internet, so entering or remaining on that website is an offence. Our Amendment 4 would ensure that it would be an offence only if a person collected, made a record of, possessed a document relating to, viewed or otherwise accessed by means of the internet information of use to a terrorist and they did not have a reasonable excuse for having or accessing that information.

Amendment 5 is consequential in that it would remove the “defence if charged” provision, which would be redundant were Amendment 4 accepted.

Turning to Amendment 3, similar arguments apply to the innocent or inadvertent publication of an image of a uniform or a flag. The ISIS flag on a friend’s bedroom wall that goes unnoticed when a selfie is posted on Facebook, which may well arouse reasonable suspicion that those in the picture support a proscribed organisation, could very well be an innocent or stupid mistake. Should the young person responsible be able to provide a simple and compelling excuse for his actions to the police officer on the doorstep rather than in an interview under caution, would that not be a better outcome?

There is nothing to be lost in having offences that are offences only if there is no reasonable excuse for the suspect’s actions. Police officers who fail to be convinced that the excuse is reasonable at the time they decide to make the arrest or who feel that the excuse might sound reasonable but needs to be verified would still have reasonable cause to suspect that the person might have committed an offence and arrest the person if it is necessary and proportionate to do so. However, it also provides the person accused of committing the offence with a legal remedy, and the police with a good reason to act reasonably, if there is clearly a reasonable excuse that is blatantly obvious and easily verifiable at the time of the arrest, yet the person is still deprived of their liberty.

I admit that the designated area offence and the obtaining or viewing of material offences have a more compelling claim for a “reasonable excuse means no offence” modification but there are circumstances where there might be a reasonable excuse for publishing an image in such a way or in such circumstances as to arouse suspicion that the person is a member or supporter of a proscribed organisation when they are neither of those things, and this will be immediately apparent to the officer sent to investigate. In my view, it is too late in the chain of events that could ensue for the reasonable excuse to be available only as a defence once charged.

No doubt the Government will say that the police can be trusted not to arrest in circumstances where a reasonable excuse is immediately apparent. With over 30 years of police experience and having witnessed at first hand the devastating consequences of innocent people being arrested and detained on the flimsiest of evidence, I am very concerned about the potential for abuse that this legislation as currently drafted provides.

Unless the Government can provide compelling reasons as to why the “reasonable excuse” defence should not engage at the beginning of the investigative process rather than at the end, I suggest that they might want to consider these arguments and undertake to discuss them further with interested Peers before Third Reading. If, however, when we come to debate his amendment in the fifth group, the noble Lord, Lord Rosser, decides that in the case of designated areas the arguments are compelling and the Minister’s response is inadequate, we will support him if he decides to divide the House on that issue. I beg to move.

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Lord Carlile of Berriew]

My Lords, my noble friend Lord Anderson tempts me to say a few words on this matter. He is absolutely right that the number of Schedule 7 stops declined dramatically over the years, and there was a very good reason for it. When I became Independent Reviewer of Terrorism Legislation, a phrase commonly used with me was “copper’s nose”. I was extremely concerned, because—if the noble Lord, Lord Paddick, will forgive me—coppers do not always have the same-sized noses nor the same air throughput into them. Some officers started to develop them for themselves. The noble Lord, Lord Hogan-Howe, is no longer here, but some officers in Scotland Yard with what is now called SO16 demonstrated to me how they had refined copper’s nose into a series of behavioural analyses that led them to decide whether and how to ask screening questions. A whole behavioural science has built up around this; it is called behavioural analysis. It emanated from America, but it has been well used by police officers here—I have been to a number of lectures about it.

I regret that the formalisation of screening questions, as suggested in the amendment, is completely impractical. My noble friend Lord Anderson referred to a coachload of passengers. One place that I used to visit quite regularly was Dover port, where buses come through at speed. Officers go on to them and ask questions such as, “Where are you going?” or “When did you come to this country?”, usually based on a reason that they have derived from the methodology they use for the people they are questioning. Formalising this process would make it very slow and more oppressive in the minds of those asked simple screening questions. They do not mind being asked a simple question or two, but they would mind if it were done in a way that suggested that it was part of a formal police process.

The police generally do this very well. They should be left to do it as they do it. We should not over-formalise something which has evolved to a point where the people who are stopped, asked a series of questions and detained for a time, and whose attention is demanded for a time, are usually those of whom there are good reasons to ask more detailed questions.

[Lord Paddick]

My Lords, I accept what the noble Lord has just said, but in my reading of the amendment, which uses the phrase,

“may include, but is not limited to”,

it would not limit the sorts of questions that could be asked, but it would differentiate formally between a Schedule 7 situation and asking the simple questions as indicated in it.

[Lord Carlile of Berriew]

Does the noble Lord really think that an examining officer getting on to a bus at Dover should walk up to a passenger and say, “I am notifying you that an examination under Schedule 7 to the Terrorism Act has been commenced. You’re not obliged to answer any questions or engage with me during this screening process. It is not an offence to refuse to engage with me in any way during this screening process. Where are you going?”? It sounds an absurdity, and it would be obstructive to the normal work of police officers under Schedule 7. Does the noble Lord not agree that, although the number of Schedule 7 stops has been reduced dramatically, there remains effectiveness in Schedule 7, which was never shown, for example, in Section 44 stop and search, which he will remember well?

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Lord Paddick]

My Lords, briefly, I support the amendment. If, as other noble Lords have suggested, organisations are proscribed for other than legal reasons but to do with foreign policy, the Government should at least be honest enough to say that that is why organisations that meet the legal criteria are still being proscribed.

[Lord Carlile of Berriew]

My Lords, I too support the amendment moved by my noble friend Lord Anderson. There is no known system at the moment for reviewing the proscription list. The Peasants’ Revolt would still be proscribed under the current absence of a system, and that is just unacceptable. I could live with it if the Minister were to make a commitment from the Dispatch Box to introduce a system of review of the proscription list. Let us not forget that if a deproscription is found to be mistaken, there can be a reproscription of that organisation in any event, so almost nothing is lost by what is proposed.

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I am somewhat shocked by the implication that there is anything illiberal about the proposed extension of the law in this clause. In November 2017, the Secretary-General of the United Nations, speaking in London at the School of Oriental and African Studies, included in his speech the following sentence:

“While terrorism often starts in conflict zones, it reaches far beyond them, organizing and inspiring attacks and radicalizing people across borders and continents”.


The clause recognises exactly what the Secretary-General described. Those who have been interested in terrorism law for as long as the period since 9/11 will recall that the then Secretary-General of the United Nations, in a speech in Barcelona shortly after 9/11, made the point that the United Nations agrees in principle that terrorism should be prosecuted wherever the defendant is irrespective of where the terrorist act was committed.

If this Bill, as we are told by the Government, is intended at least in major part to modernise the law so that it faces up to the changes that have occurred at an exponential rate in electronic communications since 2001, this is exactly one of those measures that achieves just that. Let us imagine that somebody was in this country with impunity having committed an act somewhere else that is a terrorism offence in this country. We prosecute those who committed the act in this country, but not those who committed exactly the same act, which appeared on exactly the same postings on the internet and in exactly the same YouTube videos, in another country. That makes absolutely no sense.

I say to the noble Baroness—whom I much admire—who proposed the amendments that there is a danger of us losing touch also with the public view on these matters. A set of opinion polls appeared two days ago in which it was revealed that changes in the law of this kind are broadly supported by more than 80% the public. While I do not believe in legislating on the grounds of public opinion, in this instance I regard the public as being right and I urge your Lordships to reject the amendments and not to reject the principle in the clause.

[Lord Paddick (LD)]

My Lords, I support Amendments 31 and 33, which are in the name of my noble friend Lady Hamwee and to which I have added my name. I remind the Committee that my noble friend raises the amendments as a representative of the Joint Committee on Human Rights. I am putting forward the view of the Liberal Democrat Benches on these issues.

On Amendment 31, concerning extension of extraterritoriality to wearing a uniform and displaying an article in a country other than the UK, while I accept what the noble Lord, Lord Carlile of Berriew, said about an act of terrorism, such as blowing somebody up or that sort of serious offence, to expect somebody who lives in another country—let us say in Syria—to know that it is offence to carry an ISIS flag, and therefore that they would be prosecuted if they came to the UK for doing that in Syria, without having any connection with the UK prior to that occasion, makes, to use the noble Lord’s expression, absolutely no sense. There will be some things that are so clearly a terrorist offence that people should know that they are not acceptable.

[Lord Carlile of Berriew]

Can the noble Lord identify any individual in Syria who is not aware that supporting ISIS is regarded as a serious offence in most countries, including Syria?

[Lord Paddick]

I do not think that I can answer that question, and I do not think that the noble Lord can answer it either. This is about offences which if they were committed in the UK could lead to people being radicalised or encouraged to join a particular terrorism organisation. That cannot be said about an offence committed in another country. As for Amendment 33, surely it is only common sense that a person commits an offence overseas only if their actions are an offence in that country, or they have sufficient ties to the UK that they should know that their actions would amount to an offence if committed in the UK. I therefore support these amendments.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it will not surprise my noble friend to learn that I oppose the amendment that he has just moved. We made reference during our previous day on Report to papers that were presented by the Government at the time of First Reading. Those papers included, as was mentioned on Monday of this week, a paper in which GCHQ explained why the bulk acquisition of communications data material might be crucial to interdicting a major terrorism event which it thought was likely to occur, or might possibly occur, in the near future.

The issue was then referred to David Anderson—and I am surprised that my noble friend does not accept what Mr Anderson, the independent reviewer, said on the matter. He reminded us that three of the powers under review—bulk interception, bulk acquisition of communications data and bulk personal datasets—were already in use across the range of MI5, MI6 and GCHQ activity, from cyberdefence, counterterrorism and counterespionage to combating child sexual abuse and organised crime. He said:

“They play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”.

The GCHQ paper to which I referred dealt with “further afield”.

Mr Anderson continued:

“After close examination of numerous case studies, the review concluded that other techniques could sometimes, though not always, be used to achieve these objectives: but that they would often be less effective, more dangerous, more resource-intensive, more intrusive or slower”.

Mr Anderson concluded that there was a proven operational case for three of the powers already in use, and he agreed that there was a distinct though as yet unproven operational case for the fourth power: bulk equipment interference. He also recognised the “breath-taking”—that was his word—pace of change in this area, and that we needed to make sure that the authorities had the proportionate powers that were required to protect this country, and other countries, from terrorism.

Therefore, the Bill provides the powers with a very elaborate set of protections. We also have—it is available in the Public Bill Office—the Bulk Acquisition DRAFT Code of Practice, dated autumn 2016: it is very recent. In paragraphs 3.10 and 3.11 of the code—and, indeed, elsewhere in the code—the most elaborate protections are described. For example, paragraph 3.10 contains operational guidance and advice for those who are dealing with these matters and states in terms:

“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.

Paragraph 3.11 of the code sets out in four very carefully drafted bullet points the elements of proportionality that should be considered before the powers are used. It includes assessing whether other methods have been considered and whether those other methods could have provided a reasonable outcome without the necessity of the invasion of privacy which undoubtedly the provisions describe.

I therefore ask my noble friend to state, when he comes to reply to this short debate, what his view is of the code of practice—and, in particular, of the part to which I referred.

[Lord Paddick]

The amendment relates specifically to internet connection records being acquired, and I have yet to hear my noble friend address any of his remarks to the issue of those records.

[Lord Carlile of Berriew]

If my noble friend wants me to be specific, I will, but I was trying not to take up too much time. Let us take the example of a piece of information, given to a security service, that people in possession of a bulk delivery of a certain type of telecommunications equipment, say a phone brand, are involved in the planning of a terrorist event. In order to find out quickly who these people are, the authorities would need to attack the bulk, so as to exclude all people who are not involved in the planned event. This is an absolutely routine technique that is used. I see one or two of my noble friends turning round in surprise. If they are surprised, they have not even read modern spy novels, let alone about the reality of what is being done by intelligence agencies all around the world.

The answer to my noble friend is as simple as that. I will just repeat my question, because I would like him to reply to it in due course. I take it that he has read the code of practice. What is missing from the code of practice that is required in order to provide the protection he wishes for? It is all in the code of practice; it is all in the statute. I apologise for repeating something I said on Monday, but these provisions, as drafted, are a careful and responsible response by a Government who wish to do no more than the state absolutely has to, safely, to protect their citizens.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Paddick]

My Lords, I am saying that the American model provides significant safeguards, in that somebody represents the side of privacy and civil liberties in the argument; it is not simply a case of the security agencies’ side being put, as perhaps some might see in this country.

Unlike the previous amendment, this amendment does not seek to replace the Independent Reviewer of Terrorism Legislation. On the contrary, noble Lords will see that the independent reviewer must be consulted on the appointment of members of the board. This is complementary to, not a replacement for, the Independent Reviewer of Terrorism Legislation. The current reviewer, Mr David Anderson, has previously argued that the post of independent reviewer is under-resourced and that it does not cover a wide enough range of laws. He said:

“If appropriately staffed and directed by the Independent Reviewer, the proposed new body could sharpen that investigative function and increase its scope”.

I accept that Mr Anderson also has concerns, and no doubt my noble friend Lord Carlile of Berriew, his predecessor, will tell us that he too has concerns. However, it continues to be the view of the Liberal Democrats—

[Lord Carlile of Berriew (LD)]

My noble friend tempts me to rise at this stage because there should be no misunderstandings. Does he accept that David Anderson has made it absolutely clear that he is opposed to this provision?

[Lord Paddick]

My Lords, Mr Anderson has made statements in the past in which he has supported the idea, but I accept that he also has serious concerns about it.

--- Later in debate ---

[Lord Paddick]

I am very grateful to the noble Baroness. Yes, of course I understand that for the security agencies, at every point when they are deciding to apply for warrants or to carry out intrusive activities, civil liberties are at the forefront of their minds within the framework provided to them by the law.

I come back to the point that a form of this privacy and civil liberties board has been agreed by all sides and put into legislation, but the Government have not enacted it. This is a variation on what is already on the statute book, and something that all sides have previously considered and agreed to.

Throughout the debates on the Bill, the Government have maintained that it is world-leading legislation. I believe that it can be regarded as such only if the Privacy and Civil Liberties Board is a part of it. I beg to move.

[Lord Carlile of Berriew]

My Lords, I wonder whether we might first get what might be called “private grief” out of the way—that is, the difference between my view on this matter and that of my party’s Front Bench. If I run the risk of being accused of consistency on this, I am proud of it.

Let us start with the point that my noble friend made about the United States of America. Yes, the United States of America has the body he has described, but how effective is it? I wonder whether my noble friend has examined the Patriot Act and its consequences. It is a set of provisions that allows the American authorities to do what is unimaginable here; for example, at their own whim, to look up the credit card transactions of any citizen throughout the United States for any given period. I do not want to replicate that.

I want also to pick up on a point made very briefly but eloquently by the noble Baroness, Lady Manningham-Buller. This amendment, in my judgment, betrays a lack of confidence in the security services that is completely unjustified. Anyone who has ever looked properly at the way in which the security services have been managed, at least in recent times, or anyone who, like myself, has examined the behaviour of the security services in very difficult circumstances in Northern Ireland in recent times, will know that the management is extremely rigorous and does not need the help of an expensive and ill-conceived quango to ensure that its staff behave properly.

The risks to national security from the sloppy drafting of subsection (5) of the amendment are manifest. There is no provision here for the members of the board to be directly vetted. That means that whoever the members of the board were, they would be entitled under subsection (5)(a) of the amendment to have access to,

“all relevant material (including classified information) held by any government department or agency”.

Presumably it would be their opinion as to what was relevant. Indeed, they would be able to call as witnesses or take statements from,

“personnel of any department and agency”.

That is a provision completely unparalleled in our history.

Furthermore, this proposal usurps the powers of the Intelligence and Security Committee. There is nothing provided by the amendment that the Intelligence and Security Committee cannot at least reasonably do. The amendment clearly envisages that this will be a political board, but outside the control of Parliament, because it says that no more than three members should come from any single political party. It is a sort of freeloading, undisciplined version of the Intelligence and Security Committee, without the control of either the Executive or Parliament.

Also, it looks like a very expensive board, compared, at least, with the Independent Reviewer of Terrorism Legislation. Neither David Anderson, nor I as his predecessor, ever complained about our remuneration as independent reviewer, but it pales into insignificance by at least two noughts on the end compared with this unnecessary board.

Furthermore, such a board would duplicate not just the Intelligence and Security Committee, but all the additional provisions, some contained in welcome government amendments, that have been added to the Bill. I have been watching every detail of the Bill over its very long period of gestation. More information was given when the Bill was first tabled than on any other Bill I have ever known, including more information about the security services than we have ever seen in parliamentary papers. We will now have an independent reviewer, commissioners, judges—a whole panoply of people applying sound management and good judicial principles to the considerations that the board would vaguely look at. It is not even a civil liberties board: it is not what it says on the tin, because civil liberties are not merely connected with investigatory powers.

This proposal is a fudge and it is misleading. I apologise to my noble friends for saying so, but as I have said, I have been completely consistent about this. It is one of the worst proposals I have seen on national security that has ever been proposed to your Lordships’ House. I shall not support it, I hope that others among my noble friends will not support it, and I urge the House to reject it.

Data Retention Regulations 2014

Debate between Lord Carlile of Berriew and Lord Paddick

Tuesday 29th July 2014 Lords Chamber

[Lord Paddick (LD)]

My Lords, as a Liberal Democrat and a former senior police officer I am acutely aware of the need to balance privacy and security. In these regulations, as my noble friend the Minister said, the Government appear to be maintaining the status quo with some additional safeguards, going a little further for example in enshrining what has been best practice to date into the new regulations. Pending the wholesale review of the Regulation of Investigatory Powers Act and related legislation, which we successfully negotiated with the Government and the Labour Party in the other place managed to get into the primary legislation, it is the best that we can do in the circumstances. On that basis we support the passing of these regulations.

[Lord Carlile of Berriew (LD)]

My Lords, I have been through these regulations and the Explanatory Memorandum with some care and I have also taken the trouble of ascertaining the views of David Anderson QC, the independent reviewer to these regulations. There were a number of unanswered questions during Second Reading recently, particularly relating to the future role of the independent reviewer of terrorism legislation. I look forward to receiving a response from my noble friend the Minister to those questions in due course, I suspect when the answers are clearer than they were at Second Reading. However, I am totally satisfied that these regulations do the absolute minimum to give effect to the minimum requirements of the Government. The regulations provide every possible safeguard there could be in all the circumstances and I, too, hope that the House will support them.