Illegal Migration Bill

Lord Cashman Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, I rise mainly to introduce Amendment 52F, in my name, but before doing that I would like to endorse everything that my noble friend Lord Carlile has just said. We should recognise that there are countries that people should not be sent to, where convention rights would not then apply to the subsequent refoulement. I also agree with the opening remarks made by the noble Baroness, Lady Hamwee, in moving her amendment. Again, I endorse those and associate myself with those remarks.

The noble Baroness, Lady Hamwee, was one of those who attended a meeting that I organised here before Second Reading of the Bill, which the Salvation Army and a number of other stakeholders attended; the noble Lord, Lord Coaker, was also present. The point about the Salvation Army is particularly relevant because, of course, it is one of the stakeholders that works for the Home Office in dealing with many of the people whom we are discussing in the context of this Bill. Arising out of that discussion, I thought it would be good to table amendments along these lines. In fact, there are others elsewhere in group 19 and I will come back to that in a moment.

In this group—group 4—Amendment 52F would ensure that there is consultation with relevant stakeholders in the country to ensure compliance with international obligations and that detailed assessments are made in respect of protection and support. I remain concerned that the Bill denies access to protections, safety and support for those seeking refuge and victims of modern slavery. I touched on that in previous groups that we debated earlier this afternoon.

In doing so, far from breaking the business model of people smuggling—as the Government repeatedly state—and deterring illegal entry into the UK, I think the Bill merely enhances the ability of people smugglers and people traffickers to operate with impunity. Currently, there has been very little assessment of the implications of the Bill for those seeking refuge and victims of modern slavery, including compliance with international legal instruments, as well as the financial implications if implemented and the effect on the wider modern slavery strategy.

I know the House is waiting with anticipation for the findings of the Joint Committee on Human Rights, which will meet again tomorrow to, I hope, come to a final conclusion about the report it has had to rush—pell-mell, one might say—because of the pace at which the Bill has been taken through both Houses of Parliament. Nevertheless, that report—I hope it will be unanimous but, if not, it will be a majority report—will be available to your Lordships for further consideration in Committee and on Report.

The Bill could have devastating effects on the rights of survivors of modern slavery. Furthermore, it is clear that my concern is shared right across party divides. We have seen that in the context of the debates in another place and the speeches made by people such as Sir Iain Duncan Smith and Theresa May that have been quoted in our earlier debates, but also from the survivors of modern slavery themselves. Indeed, the Joint Committee on Human Rights has had evidence from people who have been victims. I personally found it very moving to hear some of their own accounts. We have also heard from former law enforcement officials, lawyers and people who have dealt with these issues over very many years.

Rather than repeating what has already been said, I will speak specifically to Amendment 52F, which would ensure that there is consultation with relevant stakeholders in the country to ensure compliance with our international obligations and that detailed assessments are made in respect of protection and support. As I have said, the amendment sits alongside Amendments 85C and 92B, which are also tabled in my name but do not come until much later, in group 19. They would put on the face of the Bill an obligation for the Government to carry out due diligence to ensure the safety of those who are removed from the UK to other territories and countries. Indeed, we will come on to that question in a later group of amendments.

These amendments have been drafted with survivors of modern slavery and human trafficking in mind, as they too will be subject to removal from the UK if they have been deemed to enter the country irregularly. We know from experience the time it can take for a survivor to feel safe and begin their journey of recovery. We all know how heightened vulnerabilities need to be protected against trauma and the kinds of experiences people have had to endure, which have been referred to in some of our earlier debates. I cited one example earlier, reported to me by the Children’s Commissioner—I am still shocked by the story of a young boy from Iran who watched his parents being executed. It took him a year to get to the safety of this country, and the idea that he could be returned to who knows where, who knows when, is unconscionable as far as I and probably most Members of the Committee are concerned. That is why we have to think very carefully about the protections we place in the legislation. We also know that removal of survivors to another country against their will—or the fear that they might be repatriated—can exacerbate their vulnerabilities, delay or prevent that recovery process and unfortunately lead to the individual being re-exploited or re-trafficked, doing nothing to break the wicked cycle of exploitation.

If the Government insist on pushing forward with these plans of removing trafficking and modern slavery survivors from the UK, they must do so with the utmost diligence and transparency. That is why Amendment 52F would require the Government to undertake comprehensive assessments, including detailed consultation with relevant safeguarding and support organisations in the country or territory to which the survivor may be removed. It would also require the Government to assess the human rights situation of the relevant country, the protection and support available to potential and identified victims, the risks of further harm by exploitation and trafficking, and the risk of direct and indirect refoulement in that country.

The amendment would also require the Government to confirm whether the duty in Clause 2 and the powers in Clause 3 would not contravene both national and international legal instruments, including but not limited to: the Equality Act, the European convention against trafficking—which I referred to in an earlier group of amendments—the refugee convention, and the UN Convention on the Rights of the Child, which we discussed at length in an earlier group.

Many of us in this House and in the other place will continue to work to ensure and enshrine the rights of survivors of modern slavery. Amendment 52F, alongside Amendments 85C and 92B when we get to them, are there to ensure some level of transparency and due diligence, which have so far been lacking within this process. The removal of survivors from protection in this country risks fuelling the cycle of exploitation that consumes lives and spits out profits for ruthless criminals. For this reason these amendments have been tabled, to ensure that the bare minimum is done to ensure the safety of those who are at risk of further harm of traffickers.

In summary, I will make four points. First, the amendment is primarily about ensuring that if there is intention to remove people to specific countries, there is a detailed understanding of both the risks and legislation, policy and practical resources in-country to meet the needs of those seeking refuge and victims of modern slavery.

Secondly, the amendment would require an assessment of the levels of protection and support, including risks of trafficking and retrafficking and wider direct and indirect non-refoulement.

Thirdly, detailed consultation with national and international stakeholders will mean greater transparency for the implementation of this legislation and make sure that it is put into place with appropriate structures around due diligence and accountability given the significant implications for those seeking refuge and victims of modern slavery.

Lastly, it would necessitate the Government making clear how the duty in Clause 2 and the powers in Clause 3 do not contravene national or international legal instruments in the implementation of the Bill should it become law, which includes those various international conventions which I referred to earlier. The failure to be able to declare the compatibility of the Bill with the European Convention on Human Rights speaks to the remarks made earlier on today by my noble friend Lord Hannay about the reputational loss there will be to this country if we are seen to be derelict in our upholding of conventions and treaties which have served us so well in the past.

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Alton, and I agree with every single word he said in respect of protections and securities for the most vulnerable.

I have added my name to the amendments in the names of the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and the noble Baroness, Lady Bennett. I will not repeat the excellent intervention by the noble Lord, Lord Carlile, but I refer the Committee to the contribution by the Minister—the noble Lord, Lord Murray—on day one of Committee, when he categorically rejected my explicit reference to LGBTQ as a protection because he said, quite rightly, that it is covered within the definition of a social group. Therefore I am sure—or rather I hope—that the Government will have absolutely no problem with our intention within the amendments, removing countries or adding corrections for definitions.

I want to look in particular at Amendment 50 in relation to Rwanda. We do not believe it is appropriate to include Rwanda when there are legal proceedings currently in the Court of Appeal as to the legality of the removal arrangements, otherwise the Government may contend that, whatever the courts in the UK or the European Court of Human Rights may say, Parliament has by this Act approved the removal arrangements in respect of Rwanda, and that trumps any court decision under our constitution.

I also want to refer to Amendment 43A in relation to Hungary and Amendment 49A in relation to Poland—both members of the European Union, as your Lordships know. We believe it is not appropriate to include these countries, because both Hungary and Poland are subject to proceedings under Article 7 of the Treaty on European Union. Such proceedings apply where the appropriate majority of the European Parliament or the Commission and the council

“may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2”

of the Treaty on European Union, which provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. I do not have to remind your Lordships that there are, and have been for many years, deep concerns within both Hungary and Poland about the discrimination faced by LGBTQ people and the ongoing threats to their safety.

--- Later in debate ---

[Lord Bellamy (Con)]

My noble friend Lord Murray tells me that that is already in train—or, certainly, there is no objection from the Government’s point of view.

[Lord Cashman (Lab)]

My Lords, I too thank the Minister for his patience and graciousness. Given the amendments that I raised, which I co-signed with others, particularly with the noble and learned Lord, Lord Etherton, and given the notion that deterrent trumps all, I am still not reassured that a person would not be returned to somewhere like Uganda, where you face 14 years’ imprisonment or the death penalty for “aggravated homosexuality”. I am not reassured that a person will not be sent to those countries if they are at serious risk. Historically—and I shall close on this intervention—in the Home Office, people have been told that they will be returned to countries where they should not make their sexual orientation or gender identity known. I do not want us to return to those days.

[Lord Bellamy (Con)]

In taking full account of what the noble Lord, Lord Cashman, has just said, which was obviously a powerful comment, I simply reiterate, as I have said to the noble Baroness, Lady Chakrabarti, that the Government will consider the content of this debate. However, I reiterate first of all that this is a judicial and not a Home Office decision, and that those concerned will need to explain to the tribunal why they do not want to be sent back to these countries.

Human Rights Act 1998

Lord Cashman Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I am proud to speak in this debate and it is always a pleasure to follow my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I thank my noble friend Lady Whitaker for this important and timely debate and for her far-reaching introduction. I thank Professor Paul Johnson, the executive dean of the University of Leeds, for his invaluable advice and briefings from Justice, POhWER—including a coalition of charities—Amnesty and the Scottish Human Rights Commission, which warned us about the Government’s intention to replace the HRA and the negative consequences that could follow. I note with concern the absence of a briefing from the English Equality and Human Rights Commission.

I apologise for being blunt, but when I think about the practical impact of the Human Rights Act it is personal, because the impact of the Act has been deeply profound for LGBT people like me. Indeed, the very concept of equality, in which our legislation later developed, began with the equal age of consent. I think back to when the Labour Government introduced the Bill that became the HRA, and of the great promise made in this House by the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, that:

“This Bill will bring human rights home”,


so that

“the human rights of individuals and minorities should be protected by law”.—[Official Report, 3/11/97; cols. 1228, 1234.]

As a minority, I take the protection of my rights by the HRA very seriously indeed. I remember when, year after year, decade after decade, LGBT people and other defamed minorities were forced to go through extremely lengthy and costly proceedings to reach the European Court of Human Rights to gain protection under the European Convention on Human Rights in the United Kingdom. Even though the United Kingdom, as we have heard, was a signatory to the convention, individuals had limited mechanisms before the Human Rights Act to enforce their convention rights in full in the domestic courts. This produced the disgraceful situation in which domestic courts often acknowledged that LGBT people suffering discrimination would win if they advanced a complaint under the convention in the Strasbourg court but were powerless to help them in the United Kingdom.

In this respect, I need mention only the so-called gays in the military case, in which my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood, then sitting in the High Court, noted the extreme limits created by the lack of the convention not forming part of domestic law, resulting in litigants having to pursue their claims in Strasbourg, where of course they won.

The Human Rights Act gave LGBT people like me and other minorities a vital cloak of protection that we never had before. It is a protection that is in operation every single day, both in the private and public spheres. The Government’s plan to repeal the Human Rights Act in the Bill of Rights Bill should horrify anyone concerned with the development and protection of human rights in the United Kingdom. It is an act of vandalism.

It should be realised that the Bill of Rights Bill is probably a staging post for the ultimate aim of some in this Government to remove the United Kingdom from the convention itself. Indeed, provisions in the Bill of Rights Bill, which will create a damaging disconnect between the domestic courts and the European Court of Human Rights, have the great potential for once again forcing LGBT people and others to go to Strasbourg when the UK courts are less responsive to protecting their convention rights. This will potentially result in a rapid rise in violations against the United Kingdom in the Strasbourg court, which I fear will be used by a Government of this type down the line to make the tired and obscene claim that a foreign court with foreign judges is meddling in our domestic affairs and that the UK should leave the convention system.

I hang my head in shame at the kind of country we are becoming; a country where once again rights are seen as unaffordable, and people are being depicted as a threat from which others should be protected. It is happening now. Look at trans women and trans men; we have seen the casual and unacceptable dehumanisation of an entire minority, with dangerous consequences. Ultimately, any civilised country is judged by how it treats the most disfavoured and how it treats those who seek sanctuary and justice. In this regard our country has been brought low and is sinking further.

I conclude by reminding noble Lords that the Human Rights Act brings rights home and that is ultimately good for everyone. I resolutely oppose taking away the vital protection of the HRA. We are all diminished and debased by such squalid intentions.

Nationality and Borders Bill

Lord Cashman Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, unsurprisingly, I agree with everyone who has spoken so far except, I am afraid, for the noble Lord, Lord Horam. This is why: we are out of the EU now and have taken back control of our borders and laws. This is the Government’s policy. We are no longer in this family of nations, this bloc called the EU. Therefore, on what logical basis should we be saying that, by definition, we will never consider a claim made by an asylum seeker from that group?

It is one thing when you are in the EU to say that we do not need to be taking refugees from the EU because there is free movement in the EU and we are part of that bloc. You might well say that it will be inadmissible and that we do not consider refugee claims from within that family of nations of which we are a part, but we are not in it anymore. We have taken back control. Therefore, we are no longer able to assert pressure on others in that group to buck up their ideas about human rights or to threaten the Hungarians with being ejected from the EU if they do not sort out their human rights record. We do not have that leverage anymore. Therefore, it is our obligation as global Britain, as great believers in human rights and a signatory to the refugee convention, that if Hungarians are being persecuted we will consider their claims for asylum because we are better than them and we have taken back control in a lovely global Britain sort of way. It is totally illogical for Clause 14 to be part of the Bill.

More generally, the noble Baroness, Lady Ludford, made an important point about complexity and efficiency. In an earlier group, everyone in the Committee agreed that decision-making needs to be faster and better. That is in everybody’s interest, whichever side of the argument we are on. Creating lots of convoluted provisions about what is inadmissible, before you even consider whether someone is being persecuted, will only make life harder for caseworkers in the home department. I have seen Governments of both persuasions do this over the years. They think they are making it easier, but they actually make it harder by creating more convoluted hoops for people to jump through before their claim is even considered. It is better to have a clean slate and to consider somebody’s circumstances: do they qualify for asylum or not? It would be much easier without all these hoops, so Clauses 14 and 15 should go.

Just consider the claims: if countries are safe, they are safe. If people are not telling the truth, test their credibility and make that decision. Of course, I agree with everything my noble friend Lord Dubs said about safe countries, who has or does not have an association with one and the Government making the decision for them on a spurious basis.

Finally, I agree with the noble and learned Lord, Lord Etherton, it is a well-established principle of refugee convention jurisprudence the world over that you do not have to be persecuted just by agents of the state. States have a duty to protect all the people in their state. If they do not do it, there can be behaviour and persecution by non-state agents within that territory. If the state is not offering protection, if there is no effective rule of law, it is not enforcing the criminal law and is allowing Roma or gay people or whoever to be persecuted by fascist skinheads in Hungary or whatever it is, that is persecution for the purposes of the refugee convention.

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow my noble friend Lady Chakrabarti. I will be brief. I thank the noble and learned Lord, Lord Etherton, for moving Amendment 68 and associate my name with this amendment. It deals with a glaring omission. I hope the Government will accept the amendment because, as has been rightly said, the Bill states:

“The Secretary of State must declare an asylum claim made by a person who is a national of a member State inadmissible … For the purposes of subsection (4) exceptional circumstances”.


This is where Amendment 68 beautifully sits and deals with that omission because intolerance is on the rise on the grounds of many protected characteristics listed within the Equality Act not only in Hungary, but in Poland and other parts of the EU. Indeed, the EU is somewhat restricted in what it can do with independent member states on some of these issues. I hope that the Minister will indicate that the Government will move on this, and the other positive amendments within this group, because in the end we are dealing with issues of human rights.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am going to make a short speech about how the Government want to have their cake and eat it. One minute the EU is a place where there are lots of freedoms and protections for its citizens, and the next minute it is terribly repressive and we want to get out. Essentially, I support the noble Lord, Lord Dubs.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I have no doubt that that is sometimes the case, but my point is that you do not need Clause 25 to deal with that case, because the decision-makers listed here are well capable of looking at evidence whenever it is served. If the idea is that this is late, incredible or mischievous evidence, or the other concerns of the noble Lord, these decision-makers are capable of getting there by themselves. They do not need this insult to their intelligence that they must give it minimal weight. I never knew about this principle of minimal weight. It has been invented. Sometimes late evidence is good and sometimes it is bad, but this is asylum; refugees are at stake.

The noble Lord opposite always wants to talk about the numbers. He is very concerned about the numbers and I appreciate that, but this is not about numbers. It is about getting decisions right and protecting even the one claimant in a thousand who is the torture victim, who has been persecuted, who may be a child and who may have been trafficked. To turn this into a matter of a parking fine or commercial litigation, in which your case is prejudiced because you were only just advised that being gay is relevant and that you do not have to be afraid to say so, because this is Britain and Hungary, is tawdry. To make that process point, when we are talking about life or death—not big bucks or small bucks but life and death—is totally tawdry.

Clause 25 does not help. If anything, it will make life more difficult for the Home Office because, I promise you, there will be endless litigation about what good reasons are. That is why the amendments are helpful, because they are beginning to tease out what will eventually be the subjects of litigation. We do not need it. We all know that late evidence is sometimes an abuse and is sometimes incredible, but sometimes it emerges because people have only just got decent translators or lawyers, or country or other vital information, which is sometimes hard to get.

I am sorry to hear that the noble Baroness, Lady Neville-Rolfe, is unwell. I am sure that the Committee will join me in wishing her a swift and full recovery.

On the point about identifying documents, let us go back to the history of the refugee convention. Some of the most genuine refugees have to escape without identifying documents, and some of the least oppressed people are the ones who have fantastic documents. That is why Amendment 85 has to go. This is not the biggest problem in a terrible Bill, but Clause 25 is a tawdry little clause, unworthy of Her Majesty’s Government; let us strike it from the Bill.

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow my noble friend Lady Chakrabarti. I have deep concerns about Clauses 17, 19 and 25. Others have already expressed why, so I will not overly repeat myself. I congratulate my noble friend Lord Coaker on brilliantly moving the amendment in the name of my noble friend Lord Rosser. Equally, I associate myself with the amendments in the names of the noble Lord, Lord Paddick, my noble friend Lord Dubs and the noble and learned Lord, Lord Etherton.

The reality of what is sometimes the last line of defence, not only in LGBTQ issues but in other vulnerable situations, is that it is the last thing you want to have to deal with yourself. Sometimes the very notion of coming out to yourself is deeply painful, because the recognition in certain cultures, countries and religions means to shut yourself off, not only from a body of support, your religion or community, but from your family. Initially, to come out to yourself is a huge step. Then you have to make the decision, day in and day out, whether to come out in other, very ordinary situations. You are here and you have put in your claim, and someone might say, “How was your weekend? Did you spend it with your girlfriend?” You have to decide whether to lie or tell the truth. If you tell the truth, you may become isolated in the asylum community, and perhaps from your country or religion. This is the community that you associated yourself with, to give yourself support and belonging, in a country where you seek to belong. Then you come out in late evidence, with that last line of defence. If your claim is rejected, you are possibly putting yourself in danger at home, in that you could be returned to one of the seven countries where you are criminalised simply for the reason of being LGBTQI+, or to one of the 11 countries where you could face the death penalty.

I remember in the 1990s working on the case of an 18 year-old Iranian who came out in this country. His asylum application was going to be rejected. A group of us were privileged to intervene on his behalf. What that teenager had said publicly would have been recorded and noted back home. We were successful—I do not say this boastfully, but it is one of the few things I am proud of in my life—in preventing that young man being returned to Iran, where, like three other young men in the weeks before, he could have been hung by his neck on the gallows until he was dead. How will the Government deal with exceptional cases where people bring in late evidence in order to substantiate their claim?

Police, Crime, Sentencing and Courts Bill

Lord Cashman Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I remember looking at this 307-page Bill—or at least it was 307 pages to begin with—in August and wondering how on earth to tackle it. I was reminded that the way to eat an elephant is one piece at a time, which is the approach we took. This was about five Bills stapled together, except the PPO could not staple them together because it was too big. The Bill returns to the other place considerably improved, although you cannot make a silk purse out a sow’s ear—these are separate metaphors; I am not mixing them—or should I say a boar’s ear in these days?

I shall not resist what the Minister has said about the Bill. As far as we on these Benches are concerned, the existing legislation to control protest was adequate, and the measures that we have removed from the Bill were not necessary in the first place. The majority of the police consider that a lack of police officers is the limiting factor when it comes to policing of protests rather than a lack of legislation.

I would normally thank the Minister and the Bill team for their engagement, but, certainly, I am not alone on these Benches, at least as far as the home affairs side of things is concerned, in feeling that the Government have not reached out to us as much as they could or should have done. None the less, we have all been in this together over a considerable period, and I am grateful for the time that the Government have given in allowing us to debate these issues.

I thank the Official Opposition, both the leadership and Back-Benchers, the Cross- Benchers, non-affiliated Peers and the Greens for their support and co-operation. In particular, I thank Elizabeth Plummer and Grace Wright for their invaluable help on the Bill, as well as all the outside organisations which helpfully provided us with briefings. We would not have done any of this without that help, and we hope that the Government will see the improvements that we have made to the Bill as improvements when it is considered by the other place.

[Lord Cashman (Lab)]

My Lords, as other noble Lords have said, the Bill has been much improved. I pay particular thanks to the noble Baroness, Lady Williams of Trafford, for working over six years with me and my friend, the noble Lord, Lord Lexden, in widening the pardons and the disregards for historical homosexual offences, including in the Armed Forces. It is truly historic when a state apologises for what it has done and reaches back over 500 years. It is the end of a six-year campaign that the noble Baroness, Lady Williams, has been an active part of. I cannot thank her and the Bill team enough, and indeed colleagues and the team in the Armed Forces. I also put on record our thanks to Professor Paul Johnson, the country’s leading expert on this. Finally, it might have been a six-year campaign, but some of us have campaigned for more than 33 years, not for ourselves but so that injustices can at last be put right.

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

My Lords, I will try not to repeat too much of what my noble friend Lord Paddick said. He pointed out—it is not a new point—that this has been a long and difficult Bill. I am bound to say that we must all hope that such a mammoth Bill, with such a wide range of diverse topics shoehorned into a single piece of legislation, will never be put before Parliament again. It has taken too many days, with too little time for the content involved and too much pressure, not just on MPs and Peers but on parliamentary staff, officials and those many organisations that seek to brief us about legislation. For us here, there have been too many early starts and too many late nights. It has been a very difficult experience.

None the less, I completely agree that the House has done its job well. We are very grateful to the ministerial team and their officials. On justice issues, I am, of course, particularly grateful to the noble Lord, Lord Wolfson, for the care, courtesy, approachability and engagement, not to say humour, that he has shown in our discussions. We have had some significant successes, from our point of view, on breastfeeding voyeurism and common assault in the context of domestic abuse. We have had some limited progress—my goodness, it is limited—on IPPs. That is clearly not the end of the story.

On Home Office issues, we are grateful to the noble Baroness, Lady Williams, for her care and the comprehensively courteous way she has dealt with the House, although I am bound to say that I share my noble friend Lord Paddick’s view that we have felt that she has not been able, on behalf of the Government, to make the concessions she perhaps might have liked to have made in some areas.

These Ministers illustrate the pressure there has been on all of us. In this context, I mention the tireless and efficient work of my noble friend Lord Paddick, who has borne the brunt of days and weeks of debate over many hours and days of sitting, and there have been many more days of preparation.

Before the Bill finally passes, we on these Benches regard it as largely profoundly regressive. On human rights issues, the House must expect Liberal Democrats and others in the Opposition to continue robustly to defend individual liberty in a way that we do not believe the Bill does. On justice, we will keep the pressure up for a humane sentencing system dedicated to rehabilitation and reform, combined with increasing use of community sentences. We will continue to work on women’s justice, where it seems that we are accepting very slow progress when we should be looking for dramatic improvement.

Police, Crime, Sentencing and Courts Bill

Lord Cashman Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Cashman (Non-Afl)]

My Lords, I was not going to speak to this amendment, but like the noble Baroness who spoke before me, having listened I am so minded. I will study the amendment very carefully, but a balance has to be struck. That is always most difficult on issues of human rights and freedom of speech.

We have to deal with the reality that hate speech, whether intended as hate speech or not, can often incite physical acts of violence. During the pandemic we have seen not only homophobia—as a gay man I have a particular interest in that, but my interest is in all physical hate crimes—but an enormous rise in physical hate crimes, some of them reported as happening on the crowded Underground or in domestic situations, because people are in much closer quarters than they would otherwise be.

My reason for speaking is to add a note of caution about how we proceed. I will study the amendment in detail, as I said, but we must respect that speech that could be defined as hate speech, or perhaps is not, can often encourage individuals to take actions against people who they feel should not be within their communities or do not belong.

[Baroness Noakes (Con)]

My Lords, I support my noble friend Lord Moylan’s amendments in this group. Somehow, we have ended up in a position where freedom of speech—a precious part of our way of life—has been seriously constrained by something the police have invented themselves around perceptions of hostility. I find it incomprehensible that the Government have allowed the police to carve out this territory unchecked. Why has the College of Policing—a wholly unaccountable body—been allowed to invent a wholly new form of recording of behaviour that, by definition, is not criminal? Can my noble friend the Minister explain how we got here?

The recording of non-crime hate incidents is not trivial. It drains police resources from the other things they should be doing: reducing knife crime; actually solving crimes rather than recording them; or making women feel safe on our streets—just a few of the things that ordinary people think are more important. As we have heard, those who have non-crime hate incidents recorded against them are often completely unaware that it has happened, which, if nothing else, is a denial of justice. The information can be kept indefinitely and, most chillingly, can be reported to third parties under the Disclosure and Barring Service. This means that the police have created for themselves the ability to wreck people’s careers.

We live in a society where the expression of views that others disagree with is becoming dangerous. The case of Dr Kathleen Stock is the latest example of this. Disagreement is too often and too rapidly equated with hate or hostility. The mere existence of non-crime hate reporting fuels this intolerance. The police are actively encouraging non-crime hate reporting by giving a platform to people who claim to be offended by the views of others. It is a cancer in our society that we should eliminate before it becomes dangerously pervasive.

Amendment 106 is a complex amendment and I pay tribute to my noble friend Lord Moylan for his clear introduction of it. I hope that my noble friend the Minister will not hide behind a critique of the amendment but engage positively with the substance of the issues that my noble friend and others have raised.

Prisons: Violence

Lord Cashman Excerpts

Thursday 3rd March 2016 Lords Chamber

[Lord Faulks]

The causes of violence are multifactorial. They include of course the increased use of psychoactive substances, to which the Government are responding positively. It is a ceaseless challenge to try to prevent them coming into prison, but we have a new offence, and we are taking steps to make it very difficult for these substances to be thrown over walls or secreted in parts of the body. It is generally a significant challenge. We are also looking at a two-year violence reduction project, to help us better understand the causes and characteristics of violence and to strengthen our handling of it. There is also the use of body-worn cameras. Ultimately, the best way to reduce violence may be to give, as the Prime Minister and the Secretary of State have suggested, much more power to prison governors to give them the tools necessary to reform the way their prisons are run and to help rehabilitate offenders.

[Lord Cashman (Lab)]

My Lords, we are all deeply concerned about the number of deaths in prison, but I wish in particular to raise the issue of the increasing number of trans people who are taking their own lives in prison. Are there special provisions for dealing with the LGBT community, in particular the trans community? If so, will the Minister publish them so we can ensure that they are fit for purpose?

[Lord Faulks]

There is a prison service instruction in relation to the care and management of transsexual offenders, which is being reviewed. People with particular experience of these issues are involved in the review, including Peter Dawson of the Prison Reform Trust and Jay Stewart of Gendered Intelligence respectively. We are concerned of course to tackle this very delicate issue, so that those who are on the journey, very often to change gender, are properly looked after and their considerations taken into account, so that prison can be adapted in a way that most suits their requirements.

Prison Service: Trans Prisoners

Lord Cashman Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Faulks]

My Lords, Prison Service Instruction 07/2011 sets out the National Offender Management Service’s policy on the care and management of prisoners in the circumstances outlined by the noble Baroness. It suggests that, in the first place, somebody’s gender, whether their original gender or one that they have chosen under the Gender Recognition Act, should be reflected in where they are housed. Nevertheless, there is a degree of discretion allowed to the Prison Service, which it exercises, to make sure that someone in that situation is treated with appropriate care, consideration and sensitivity.

[Lord Cashman (Lab)]

My Lords, mindful of the review of the current policy, what urgent steps will the Minister take to review the location of all trans people in prison and to move them to appropriate prisons according to their acquired gender, to avoid a repeat of the tragedy that befell Vicky Thompson?

[Lord Faulks]

The important thing is that there is no generalisation here. It is important to assess each individual prisoner according to the stage they are at and their particular case. It might be a diagnosis or they may have fully realised their gender transformation. That individual assessment is carried out by the Prison Service, involving the assistance of psychological services and healthcare experts. It is after that assessment that they should be assigned an appropriate part of a prison.

Criminal Justice: Transgender People

Lord Cashman Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Faulks]

I am slightly surprised that the noble Lord has commented in such detail on Tara Hudson; he will be aware of the obligations under the Data Protection Act and the Gender Recognition Act 2004, which place restrictions on the disclosure of information relating to prisoners. As noble Lords will be aware, it is the policy of the Ministry of Justice and its executive agencies never to discuss individual cases. However, without breaching any of the obligations under those Acts, I can assure the House that she is being held in an appropriate environment and is receiving the care that she needs.

[Lord Cashman (Lab)]

My Lords, I agree entirely with the Minister on the approach to anonymity but, in this and other cases, there is deep concern about treatment within the criminal justice system. There are, however, good works being undertaken, such as at Her Majesty’s Prison Stafford. Will he reassure the House that there is ongoing training and awareness-raising of the issues of transsexuality, particularly when aspects of the criminal justice system are outsourced?

Human Rights and Civil Liberties

Lord Cashman Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I welcome the decision of the noble and learned Lord, Lord Wallace, to have this very important debate, and I am pleased also to follow the noble Lord, Lord Lexden.

I have not made any notes today because I wanted to speak in a personal capacity. First, I must declare an interest as a co-founder of Stonewall. I do not understand why the Government are taking this approach to the Human Rights Act, which has worked magnificently for 15 years, with the consequence that if we adopt the proposals the Government outlined in 2014, we could very well move away from the European Convention on Human Rights. That has consequences beyond human rights, which some noble Lords may well welcome. Indeed, it would perhaps prohibit us from remaining a member of the European Union.

I cite the European Union for a very good reason—because the Council of Europe, which Churchill took great pride in, the European convention and our Human Rights Act all stem from an amazing point in history: the end of the Second World War. The founders of a new Europe looked across Europe and stated that what happened should never happen again. The convention, the Council of Europe and the European Union were quite literally born out of the ashes of the Second World War, the ashes of peoples’ hopes and dreams and, yes, the ashes from concentration camps dotted across Europe.

We have seen the least favoured defended—people like me in the 1980s, having no rights as a gay man—through Stonewall and through courageous individuals pursuing their cause, literally dragging their cases through the courts of the United Kingdom to prove that they could go to the court in Strasbourg and achieve a judgment. That is one of the reasons why I can now stand in the United Kingdom and almost enjoy equality. Sadly, simply because of their sexual orientation and somebody else’s religious belief, people in Northern Ireland cannot enjoy those same rights. The jurisprudence we have gained from the European Court of Human Rights is what our rights here are based on.

It is good to see the Minister in his place. I owe him an apology because I talked about these issues in the debate on the gracious Speech on 1 June but was not in my place for his winding-up speech. Subsequently, as I hope noble Lords expect good East End boys to do, I wrote him a letter of apology. In his winding-up speech he referred to the fact that we do not need Strasbourg in order to achieve rights. That is absolutely correct. We need Strasbourg when Governments do not want to give those rights and when Governments believe that equality is inappropriate for certain individuals or sections of society. The Conservative Government could introduce equal marriage in the other place precisely because of the courage of organisations and individuals who had gone through our courts and to Strasbourg in order to achieve jurisprudence and a judgment upon which the Government could decide to act, or not to act. In the early 1990s, when the European Court of Human Rights gave its judgment that the ban on lesbians and gays serving in the military was wrong, the Government, quite rightly, could have merely noted the judgment and continued with the ban. They chose to do the right thing and recognise the judgment.

Here I come to one of the central points of the Motion of the noble and learned Lord, Lord Wallace: the challenges. One of the biggest challenges is the misinformation and disinformation about the European Court of Human Rights and the Human Rights Act, largely purveyed, I am saddened to say, through our newspapers and the reactions of some politicians. The reaction of politicians, from all political parties, to the judgment on the blanket ban on prisoners having the vote was shameful. It was misrepresented as Strasbourg once again interfering with a sovereign parliament. However, it is up to Parliament to accept the judgment or not; it is Parliament that decides to change its laws, or not.

Before I conclude, I thank noble Lords for indulging me today. For me, this is personal as well as political. As I have often said in this House—I believe that I even said it in my maiden speech—I am an atheist, although someone pointed out to me that perhaps I am a recovering Catholic. What I have to do, as a human rights defender, is always defend the other—defend the right to religious belief and defend the right to difference, because if I do not, how on earth can I ever expect anyone to defend me? Great democracies, beacons of democracy such as the United Kingdom, are such because we have had the courage to speak externally for the rights of others and internally for minorities. All great democracies are judged not by how they treat their majority but by how they treat their minorities—the least favoured, even someone who wants to use the Human Rights Act to escape deportation. Is it not better that we have a handful of cases where there is an abuse of law, rather than see a majority denied access to justice and access to law and equality?

The noble and learned Lord, Lord Wallace, mentioned the international aspects. I am deeply worried that what we do in these Houses will give succour to those who thought that they could use teargas and shoot rubber bullets at the gay parade in Istanbul last week, or members of the junta in Burma who feel it is absolutely right openly to condemn people merely because of their sexual orientation.

These arguments have been going on for not just the past century, but centuries. I will perhaps commit a small theatrical blasphemy by paraphrasing William Shakespeare, who co-wrote a brilliant play called “Thomas More”. Thomas More is called to the Tower of London as the citizens of London are rebelling because the “strangers” have made their way from Calais to Dover. He comes out, and with one hand quells the mob—if only we politicians could do the same—saying, “You bid that they be removed? The stranger, with their children upon their back, their belongings at their side, their family around them. Imagine you are the ‘stranger’ with your children upon your back, your family at your side, your belongings at your feet. Imagine that you are the stranger and then bid that they be removed—and show your mountainish inhumanity”. Now is the time for all of us to speak against inhumanity and in defence of human rights.

Queen’s Speech

Lord Cashman Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Cashman (Lab)]

My Lords, it has been an enlightening and enlightened debate, and there have been wiser counsels than mine own, but I want to concentrate on one particular aspect and express my deep concern at the Government’s intention to publish proposals with a view to scrapping the Human Rights Act and proposing a British Bill of Rights.

I never thought that in my lifetime and in the 21st century I would see human rights, or rather the judgments based on the European Convention on Human Rights, become a political issue that could result in diminishing human rights and access to justice in this country. There are huge consequences to such an approach, both domestically and internationally, as well as consequences for our continuing membership of the European Union, a Union based on fundamental values, human rights and the rule of law.

Let me be clear from the outset what I think the Government’s intentions are. They are to appease their right wing and the leader writers of the tabloids in particular and the right-wing press in general. It is about constructing a potential Bill which will deliver judgments that the Government believe they can live with and the public will approve of. It is a dangerous route of populism for a country built on the tradition of the protection of the individual both at home and abroad.

Access to the courts on issues such as human rights or the interpretation of such rights defines us as a democracy. I believe that the problems are with the judgments which have been delivered from the European Court of Human Rights, and from our own Supreme Court, when they have not fitted comfortably with the Government’s view of human rights or those of the right-wing press. So we scrap the Human Rights Act, which has worked well—there have been many examples in this debate. Then we withdraw from the European Convention on Human Rights because we do not like the judgments delivered from that court, or indeed the justiciability of such a court. What happens, then, when the Executive or some future Government do not like or welcome the judgments from the Supreme Court when based on a Bill of Rights? Do we scrap that Bill or do we place judges in the courts to deliver judgments that are palpable? The road ahead is worrying indeed and we will never appease the Daily Mail, the Sun, the Telegraph or the Times—none of them. We will have lost power to so-called populism: to the mob.

The fury and misrepresentation around judgments from the European Court of Human Rights in Strasbourg has bordered on the hysterical but I remind your Lordships that many rights exist in this country today because courageous individuals and organisations took their cases to that court. Before the Human Rights Act, they had to quite literally drag their cases through the domestic courts before they could have their rights recognised, then upheld, in Strasbourg. Even then, in some instances, Governments resisted.

The infamous judgment on the rights of prisoners to vote was, sadly, hysterically seized upon by most political parties but the European Court of Human Rights in Strasbourg did not state that prisoners should have the vote. It stated that a blanket ban was in breach of the convention, and so it is. Let the punishment fit the crime; if we believe in a Prison Service which is redemptive, should we not prepare our people to carry out their civic duties and responsibilities when they leave prison, including participation in democratic elections? There are myths—many myths—but I would rather have a system which could be abused by a small number of people than diminish the right to a fair hearing, or diminish the human rights of communities and out-of-favour minorities or individuals.

I believe that a civilised democracy—a civilised country—is judged by how it treats its least favoured, least revered and least loved individuals or minorities. On a personal note, I come from a minority which is still much maligned and misrepresented. Even today, our rights in some parts of the United Kingdom are still resisted or denied. The rights of lesbian, gay, bisexual and transsexual people are still not universally welcomed or accepted in the United Kingdom. Sadly, even in Northern Ireland, same-sex marriage is still not legal or available. I remember well that until the 1990s, we in our community had virtually no rights in this country. We now have them, due in great part to the courage of individuals and organisations such as Stonewall, which pursued individual cases through the courts to Strasbourg. The rights that I enjoy from the European Convention on Human Rights and the Human Rights Act—the rights that we all enjoy—are enjoyed because generations of individuals have had the courage to stand up against injustice, tyrannies and Governments to demand equality. They demanded not to be treated better but to be treated equally.

Let me conclude. On behalf of the least favoured and least popular, and in defence of the human rights of all and the principle that human rights are universal and do not stop at manmade borders or during manmade wars, I urge your Lordships to defend vigorously the Human Rights Act and the European Convention on Human Rights. It is better that our lives as legislators are made more difficult and we face criticism from populists than that the rights of another be sacrificed on the misconstructed altar of public opinion, which will shift and shift. I am very clear indeed on this. Judges and judgments are not there to please or to make the lives of politicians or Governments easy, or easier. They are there to make our lives difficult and, where necessary, to make us think again—to pause and hesitate—and never more so than in the realms of human rights and civil liberties.