Safety of Rwanda (Asylum and Immigration) Bill

Lord Garnier Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I want simply to say a few words in support of Amendments 3 and 7 in my name, and to express more general support for the position adopted by the noble Baroness, Lady Chakrabarti.

On Amendment 3, it is simply untrue to state that it is the judgment of Parliament that Rwanda is a safe country. That may be the opinion of the House of Commons—I was a Whip there for many years, so I know the forces that are put in place to assure the opinion of that House; the “elective dictatorship” of which my father spoke—but what is absolutely certain is that it is not the opinion of this House. We know that to be a fact because of the vote that took place here on 22 January.

In my opinion, we should not put into a Bill a statement that is manifestly untrue. Hence, I put down amendments that state the truth: that the safety of Rwanda is the opinion of the Government. That is the truth, so why on earth should we not enact that simple truth, rather than commit what, in other circumstances, would be described as a lie?

On Amendment 7, we should state in clear terms what we are doing. We are, in fact, using a statutory and untrue pronouncement to reverse a recent finding by the Supreme Court. I have the greatest respect for my noble friend Lord Howard; we were colleagues for very many years, and he was in the House of Commons for 27 years. I beat him, as I was there for 30 years, but he was a lot more distinguished than me. However, to try to say that the Supreme Court did not make a finding of fact is to turn the situation on its head. It expressed an opinion as to fact, as juries do in criminal cases—and an opinion as to fact is a finding of fact.

I will take a slightly broader view. I happen to share the view—I suspect it is pretty general in this House—that both legal and illegal migration are far too high and should be reduced. I share the very correct intention of the Government to deter illegal migration, which we need to do. My objection is not to the purpose but to the means being advocated, which is wrong in principle and will not succeed. However, it is clear to me, as it is to the noble Baroness, Lady Chakrabarti, that the Government have decided to push ahead and will doubtless reverse our amendments in ping-pong.

In the spirit of compromise, I will make some positive suggestions, as the noble Baroness did. Leaving aside the issue of principle, I am concerned that the Government are seeking to enact, without any proper assessment, their judgment as to whether Rwanda is safe. That means not just whether the treaty is put in place in Rwanda, but whether its provisions are implemented over a period of time—and whether we can for other reasons say that Rwanda is safe. That, we are entitled to do. To be clear: that is not a one-off assessment; it has to be a continuing assessment, because things can change.

The other thing we need to be absolutely clear about is whether the policy objective is working. We are told that the purpose of the Bill is to reduce illegal migration across the channel. That is a judgment—I do not happen to think it will work—but one thing is certain: we do not know now whether it will work, but in the course of time, we may be able to form a view.

My concern is that the Bill provides no mechanism for a continuing assessment of both the safety of Rwanda and the success of the policy, and I believe that Parliament is entitled to demand a continuous and authoritative assessment. We can argue whether it should be based on the European body; or, as Amendment 81 suggests, it should be done by the Joint Committee on Human Rights; or, as I have in the past suggested, by a special Select Committee appointed for the purpose. However, there is a way forward. The Bill does not come into operation without both Houses of Parliament triggering it by an affirmative resolution, and they can do so only once a report has been received from whatever assessment monitoring board we put into place.

That is not enough because, as I say, we need continuing assessment. Therefore, I contemplate something like this. The initial trigger should be, say, for two years. It could then be renewed for two years by another statutory process—affirmative resolution—on the basis of a further report; and then again, if the Secretary of State thinks he will get away with it. That way, we will have a continuing process of assessment, which would give this House and Parliament in general something on which it could honourably proceed.

I would like to think that my noble friends on the Front Bench will show a certain degree of flexibility. If they do not, it may be quite difficult to persuade their critics to be flexible.

[Lord Garnier (Con)]

My Lords, I briefly want to follow my noble friend Lord Hailsham in his remarks. Had he been the presider in a three-person court, I would have been very happy to say that, having heard his speech, I had nothing else to add. However, since we are here, your Lordships have the disadvantage of hearing what I have to say. Like my noble friend Lord Howard of Lympne and my noble friend Lady Helic, I regret not being present at Second Reading and apologise, but I have read the Hansard of the debate.

I am always reluctant to disagree with my noble friend Lord Howard, but he took too narrow an approach to the questions before us. I use Clause 1(2)(b), which is the subject my noble friend Lord Hailsham attacks, as a hanger on which to make a few remarks. I think, if I understood him correctly, that my noble friend Lord Howard said that Parliament can essentially do what it likes, and of course he is perfectly right. Parliament can be as foolish as it likes. It can pass a law saying that all dogs are cats, but that does not make all dogs cats. It can pass a law saying that Rwanda is a safe country, but that does not make it a safe country. In addition—this is where I agree with my noble friend Lord Hailsham—it is for the Executive to advance their policy, whether it is a good policy or a bad one. It is for the Government to say that it is their policy that Rwanda is a safe country to which to send failed asylum seekers. If the Government then wish to have their view tested by Parliament, again, they can go ahead and do it.

Therefore, what the Government are proposing as a matter of policy is not a constitutional outrage, but the way in which they are writing it down in Clause 1(2)(b) is, if I may respectfully say so, just plain silly. It is worse to be silly than it is to be guilty of a constitutional outrage, and this is not a constitutional outrage but just plain silly.

Ridicule is a more powerful weapon than the constitutional and legal arguments of any number of lawyers. As the noble Baroness, Lady Chakrabarti, advances in one of her amendments, it would be helpful to have a UNHCR opinion on the safety or otherwise of Rwanda. However, I have a feeling that exporting government policy to the UNHCR is not a good idea. It would be helpful to have that opinion, but it is not essential. The Government must stand on their own feet, bring their policy to Parliament and have it tested. It will survive or not on the merits of the facts. The assessment of whether Rwanda is a safe country must be for the Government to consider and for Parliament to agree; we as a bicameral parliamentary body are not equipped to reach those sorts of conclusions. We can agree or disagree with the Government, but we are not equipped in a presidium to reach a conclusion on whether the Republic of Rwanda is a safe country as a matter of fact.

I do not wish to undermine or underestimate the hugely difficult political problem that the Government face with illegal immigration and the making of unsound asylum applications. Nor do I wish to undermine their genuine and very proper decision and policy to stop the boats. However, if we are to stop the boats, and if we are to reduce the amount of illegal immigration and bogus asylum applications, the Government would go a long way if they had the confidence of their own convictions and allowed Clause 1(2)(b) to say that that the Bill gives effect to the politically expedient policy of the Government that the Republic of Rwanda is safe, rather than trying to shift the responsibility for that opinion on to Parliament. Parliament may come to agree with it, but the initial policy is one for government. To that extent I wholly agree with my noble friend Lord Hailsham.

[Lord Anderson of Ipswich (CB)]

I am another supporter of Amendment 3. Clause 1 is an example of the current vogue for starting Bills not with operative provisions but with preambular statements of the obvious, a custom which is always irritating but normally harmless. However, there is harm, not just silliness, in Clause 1(2)(b) with its rather grand invocation of

“the judgement of Parliament that the Republic of Rwanda is a safe country”,

a judgment for all time, apparently, that there is no provision to revisit or change. That invocation is unnecessary and contrary to principle. It is unnecessary because there are other ways for Rwanda to be declared or deemed safe. The Secretary of State could be entrusted with the decision or, if it really is necessary for Parliament to take it, there could at least be a power for the Secretary of State to amend it in the light of changed conditions, as was the case with Section 75 of the Illegal Migration Act 2023.

It is contrary to principle because it requires us to come to a judgment on a fact-specific life-and-death matter on which, frankly, we are ill equipped to adjudicate. Of course, this is not the first time that such a thing has happen. It was tried in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, when the countries of the European Economic Area—all signatories to the ECHR—were deemed, beyond rebuttal, to be safe. That experiment, a requirement of European Union law, was not a successful one. Its unwieldiness was demonstrated in the case of Nasseri. The Judicial Committee of the House of Lords dismissed a challenge to the safety of Greece but, through the noble and learned Lord, Lord Hoffmann, whom I am delighted to see in his place, indicated that the courts might have to issue a declaration of incompatibility if the deeming provision was contradicted by the evidence. The issue was sensibly addressed in the Nationality and Borders Act 2022 by transforming the irrebuttable presumption into a rebuttable one.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I do not rely on that at all. As I tried to explain, a variety of aspects of the UNHCR’s work are included in our safety assessment—and that is just one of them.

[Lord Garnier (Con)]

I apologise for interrupting, because I know that my noble friend the Minister wants to sit down for good. When he spoke to Clause 1(2)(b), was he speaking for Parliament or the Government?

[Lord Sharpe of Epsom (Con)]

As my noble and learned friend is aware, I speak for the Government.

Imprisonment for Public Protection Scheme

Lord Garnier Excerpts

Thursday 13th October 2022 Lords Chamber

[Lord Garnier (Con)]

My Lords, in a short debate such as this, it is often not possible to say anything at all and certainly not anything original. However, the two previous speakers, the noble and learned Lord and the noble Baroness—I congratulate her on achieving this debate—have demonstrated that my first premise is wrong. I congratulate them on what they had to say.

That said, I happily refer once again to my connections to the Prison Reform Trust and a few other charities connected to the welfare of prisoners, and pay tribute to the small band of noble and noble and learned Lords, many of whom are taking part in this debate, who have kept the continuing injustice of indeterminate sentences for public protection before your Lordships’ House, the Government and elsewhere.

I shall make a couple of points. First, the Commons Select Committee report is a powerful document, as the noble Baroness made clear. It needs to be taken seriously by the Government and not just put in the “too difficult” file. The Government must act quickly on the recommendations that can be dealt with now and make a solemn promise, despite the many other matters on the public agenda, to produce a plan or schedule to deal with those recommendations that will take a bit more time. Whatever the timetable, the work must start now. Procrastination or equivocation will no longer satisfy the need for justice to be done and for hope to be restored to all those still incarcerated many, many years after their tariffs expired. The burden of proof is very much on the Government to show why no or little action is the answer, and why those still in prison beyond their tariff or those who have already served longer than the maximum for the underlying offence should not be released.

Secondly, historians can occasionally identify watershed moments in the past which turned events. There have been debates, books or public events which, it can be said with the benefit of hindsight, influenced, or even catalysed, the course of history. Is it too fanciful to ask my noble and learned friend the Advocate-General to recognise that we are now at a time when the Government must do things about IPPs which in the future can be seen to have made that real and civilising difference? This sentence, which the noble Lord, Lord Blunkett, has bravely admitted should never have been enacted, was abolished 10 years ago; let us strike out now and clear its foul stench from our justice system. If our forebears stopped sending children up chimneys and abolished slavery, I rather think that we can get rid of the remaining injustices caused by IPPs. Can I see a Wilberforce or a Shaftesbury on the Treasury Bench?

Northern Ireland Protocol Bill

Lord Garnier Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Garnier (Con)]

My Lords, there is much to be learned from the speech of the noble Earl and I am grateful to be able to follow him.

I want to refer to the report of the Delegated Powers and Regulatory Reform Committee on the Northern Ireland Protocol Bill. There one can find 11 devastating and fundamental criticisms of the Bill, not one of which has been satisfactorily been dealt with by the Government outside Parliament, in the other place or, I fear, despite his charm and undoubted integrity, by my noble friend the Minister earlier today. That any relatively short Bill, but certainly one of such legal and constitutional importance as this one, should provide so many powerful reasons for criticism is shocking, although, since the change of Prime Minister in July 2019, perhaps unsurprising. One might have hoped that his departure would have made a difference. As for my noble friend Lord Frost’s suggestion that the Bill gives the Government agency, I am, unusually, lost for words.

The Bill is the ugly constitutional twin of the ill-starred UK Internal Market Act, which in December 2019 the then Northern Ireland Secretary admitted deliberately broke international law. This Bill breaks the same treaty but adds to that by permitting government Ministers to make laws, to amend them or to disapply them and our treaty obligations. That Secretary of State is now the Lord Chancellor, the guardian in Cabinet of the rule of law and our constitution. What is the point of making treaties if our Government think they matter only at and for the moment a Prime Minister signs them? What is the point of Parliament if elected Members of Parliament are prepared to delegate to Ministers the most important constitutional duty they have—to make considered statute law and to hold government to account? Of course I understand the politics affecting the Bill, but is it not ironic that it requires your Lordships’ House to uphold democratic and constitutional propriety?

Of course, some will say that the end justifies the means: that the preservation of the union of the United Kingdom is more important than constitutional or legal purity. Even if one tries to ignore the slippery slope that suggests, it is a false dichotomy. As the Minister of State for Northern Ireland, my honourable friend Mr Steve Baker, recently accepted, extravagant posturing is less productive than diplomacy. The end does not justify the means, because the means are not the road to the desired goal. Worse, if we want to throw petrol on the angry fire of communalism and of separatism within the United Kingdom, look no further than this Bill for the jerrycan.

Judicial Review and Courts Bill

Lord Garnier Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Garnier (Con)]

My Lords, I join the noble and learned Lord, Lord Brown, in all that he has said, and I say with greater confidence, albeit with some reticence, if that is not a contradiction, that I disagree with my friend, the noble Lord, Lord Marks, with whom I am a fellow member of chambers. I think it is fair to say that the Back Benches of the Conservative Party in this House are now more greatly adorned by the promotion, I would say, of the noble Lord, Lord Wolfson, to these Benches, and I look forward to his contributions from his Back-Bench seat. The noble Lord, Lord Pannick, correctly described my noble friend, but he and I need to be very careful because we now have yet another competitor for a car park space in Brick Court.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too would like to thank the Minister for his careful introduction to the Motions before us today. I would also like to thank all those who worked to improve this Bill during its progress through both Houses, and I single out my honourable friend the Member for Hammersmith, Andy Slaughter, and Alex Cunningham, the Member for Stockton North. I would also like to thank noble, and noble and learned, Lords from the Cross Benches who have taken an active interest, particularly in the judicial review parts of this Bill, which has led to the substantial improvements which we have just heard about.

There has been a spirit of consensus on parts of this Bill, particularly those concentrating on court procedures. I thank the noble and learned Lord’s predecessor, the noble Lord, Lord Wolfson, for numerous discussions about court procedures and how they might be monitored and improved. That is not a point of contention we are considering today.

I start with Motion A and the amendment to it, Motion A1, from the noble Lord, Lord Marks, on Clause 1 of the Bill. Yesterday the Government accepted the amendment in the name of the noble Lord, Lord Anderson, which would do away with the presumption that quashing orders would be prospective. As my honourable friend said yesterday, this

“extracts the worst of the sting in clause 1”. —[Official Report, Commons, 26/4/22; col. 604.]

I congratulate the noble Lord, Lord Anderson, on this achievement. It is in the spirit of recognising this compromise and move by the Government that, while we are sympathetic to Motion A1, in the name of the noble Lord, Lord Marks, we would not support it if it were pressed by the noble Lord.

In Motion B, on Clause 2 of the Bill, the Government propose that the House do not insist on its Amendment 5, in the name of the noble and learned Lord, Lord Etherton. The amendment would have retained Cart reviews in the High Court and Court of Session in limited circumstances. I understand the noble and learned Lord will not be revisiting this issue, and we will not oppose the Government’s Motion. For the avoidance of doubt, I should make it clear that we see no purpose in Clauses 1 and 2 of this Bill. It would be our preference to remove these clauses from the Bill in their entirety, but we recognise the votes yesterday and we will not be opposing the Government’s Motion.

I now turn to the Government’s Motion C and my amendment to it, Motion C1. The original amendment in my name ensured that bereaved people, such as family members, would be entitled to publicly funded legal representation in inquests where public bodies, such as the police or a hospital trust, are legally represented. The original amendment in this House was won with a handsome majority. The purpose of the amendment was to achieve an equality of arms at inquests between bereaved people and state bodies. This is an issue not just of access to justice, but of fairness. How can it be right that state bodies have unlimited access to public funds for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowd- funding? This fundamental point was acknowledged and agreed with yesterday by Sir Bob Neill, chairman of the Justice Select Committee in the other place.

The reason given by the Government for objecting to this amendment was that it would involve a charge on public funds. I acknowledge that point and the amendment now asks for a review. I also acknowledge the point that the noble and learned Lord made—that that is not the sole reason for the objection to the amendment in my name.

Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. This is a long-standing issue which, to be fair to the Government, as we have heard today, they acknowledge there is more work to be done on.

I have had a number of meetings with the Minister and his colleague Mr Cartlidge. Unfortunately, we have not reached an agreement on this matter, although I thank them for the efforts that have been made. I want to run through the arguments they advanced during our meetings. First, as the noble and learned Lord has said, there is a means test review under way. The Government’s argument is that by highlighting one particular group—namely, bereaved families—it would raise expectations for that group and that may not be fair to that group while the review is under way.

Northern Ireland: Defamation Act 2013

Lord Garnier Excerpts

Monday 11th January 2021 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Baroness has, to a certain extent, been answered by my answer to my noble friend Lord Lexden. Work on the matter recommenced as of February 2020. As to the statistic which the noble Baroness puts forward on the comparative number of defamation actions, I put the question to officials and am satisfied with the answer that, despite concern that a libel tourism industry might arise in the law of Northern Ireland, this has not taken place.

[Lord Garnier (Con)]

I declare my interest as a media law practitioner at the Bar of England and Wales and the Bar of Northern Ireland but not, as my noble and learned friend will be glad to hear, as a member of the Scottish Bar. That said, will he accept that, although the 2013 Act confuses the difference between a defamatory statement and one that is actionable, among other positive things it enacted the serious harm rule, the public interest defence, the website operators defence and the single publication rule adjusting the limitation period, and it widened the ambit of reporting provision? Will he further agree that, so long as the Act does not apply to Northern Ireland, freedom of expression and freedom to criticise those in positions of power and influence are curtailed in what is, and I trust will remain, an integral part of the United Kingdom?

[Lord Stewart of Dirleton (Con)]

My Lords, in relation to the matters raised by my noble and learned friend, although extension of the provisions of the Defamation Act 2013 might be desirable, existing common law and statute law in Northern Ireland, informed as it is by human rights considerations, is not so deficient as to curtail freedom of expression and the legitimate criticism of those in authority and in positions of power and influence. I note my noble and learned friend’s membership of the Bar of England and Wales and the Bar of Northern Ireland but not that of Scotland, and I hope that at some point in the not-too-distant future the opportunity may arise for him to complete a much-deserved triple crown.

Rule of Law: Law Officers

Lord Garnier Excerpts

Tuesday 15th September 2020 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I was not concerned with either ambiguity or problems within the withdrawal agreement Bill; others may have taken a different view.

[Lord Garnier (Con)]

My Lords, may I take it from his earlier answers this afternoon that my noble and learned friend agrees that the law officers’ first duty is to the rule of law, their second is to Parliament and their third—and very much their third—is to the Government, and that respect for the rule of law encompasses ministerial obligations under both domestic and international law? The Bill that we are considering disapplies sections of a treaty that we have freely entered into. How does that fit with the rubric that I have just read out?

[Lord Keen of Elie (Con)]

On the first point, I entirely agree that the role of the law officers requires them to address the rule of law, Parliament and government, and in that order, without any difficulty. As regards the present Bill, it is designed to provide for a contingency, which will operate only in the event of us having to respond to a material breach or fundamental change in obligations, and then only by bringing forward regulations that will require the approval of this House. Unless and until that occurs, there is no breach of the treaty; there is simply a means by which the treaty obligations can be addressed in the event of a breach.

Covid-19: Prisoners

Lord Garnier Excerpts

Thursday 16th July 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, the scheme is there to ensure that there is a safety valve for capacity within our prison system. It has worked in that respect. The primary issue has to be public protection. We have to take great care over the early release of those who have been imprisoned, particularly for offences that might otherwise inflict further danger on the public. At present, the Government have fully implemented compart- mentalisation in 98% of prisons and introduced strong measures to protect not only prisoners but staff. The remaining matters of compartmentalisation simply await the completion of temporary accommodation.

[Lord Garnier (Con) [V]]

I refer to my interests in the register. While recognising the point that my noble and learned friend has just made about security, can he tell us what progress has been made in implementing the report’s second recommendation—namely to streamline and expedite the early release scheme to create the headroom needed to take active steps to protect life? Does he agree with the report’s suggestion that:

“Given numbers of medically vulnerable people who need to be shielded”,


we should

“overhaul the process of release on compassionate grounds and review and halt the misuse of prison custody as a place of safety”?

[Lord Keen of Elie]

My Lords, we are not going to rush into reviews of the kind that my noble and learned friend refers to at this stage. However, we are of course anxious to build on improvements within the prison system, for example by building on some of the recommendations in the report, such as those concerned with the key worker scheme and with greater prisoner engagement and peer support.

Royal Commission on Criminal Justice

Lord Garnier Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, as the noble Lord may be aware, the terms of reference of a royal commission cannot be altered. It is therefore critical that we determine and finalise those terms of reference with care. A small team of civil servants in the MoJ is working to establish the royal commission and it anticipated that they will transition to make up the secretariat for the commission, which we hope to have operational from the autumn.

[Lord Garnier (Con) [V]]

My Lords, I refer to my interest in the register. When my noble and learned friend the Minister last dealt with this question on 3 June, he was not able to be very forthcoming but, since then, the backlog of trials in both the Crown Courts and the magistrates’ courts has got even longer. A royal commission will not help, but there are plenty of Crown Court recorders and deputy magistrates’ court judges ready and able to assist. Why are they not being deployed?

[Lord Keen of Elie]

My Lords, thanks to the hard work of professionals across the criminal justice system, more than 150 courts have remained fully open to the public throughout the pandemic. By the middle of this month, we anticipate that all court centres will have reopened.

Prisoners (Disclosure of Information About Victims) Bill

Lord Garnier Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, first, I wish to associate myself with the expressions of support and sympathy of the noble Baroness, Lady Bull, for those who have campaigned so strongly and so well for the Bill to be brought before the House. It is a very important Bill.

Secondly, I support these amendments because the ability of a prisoner to recall what has happened is, of course, paramount and of considerable importance when the Parole Board is considering its decision. I hope your Lordships will forgive me if I keep my further observations for the second group of amendments, which I will be speaking to in a moment.

[Lord Garnier (Con) [V]]

My Lords, we have discussed the arguments behind these amendments in Committee and, to some extent, at Second Reading. I am not sure that much has changed since. For my part, while I entirely accept the motives and intentions of those behind the Bill itself, as well as the amendments in this first group, I remain sceptical about the utility of the Bill as an addition to the criminal law. That said, I have every sympathy—who would not?—for the living victims of the abhorrent criminals covered by the Bill, and know why they, and those who support the Bill so enthusiastically, want it enacted. I am sure it will be very soon.

Both the Minister and my noble and learned friend Lord Mackay of Clashfern were not favourably impressed with my suggestion of a discrete criminal offence. From memory, only the noble Lord, Lord Adonis, was prepared to agree with me about the value of the Bill in its current form. My suggestions have now sunk below the waves and can be forgotten. However, I urge the House, despite the experience and wisdom of those supporting these amendments relating to the offender’s state of mind—either through the greater emphasis demanded of the Parole Board in Amendment 1 of the noble Baroness, Lady Bull, or through a Newton hearing under Amendment 3 in the next group, proposed by the noble Lord, Lord Thomas of Gresford—not to curtail the Parole Board’s independence and discretion.

As I indicated in our earlier debates, I would like the Parole Board’s work to be more accessible to the public. Despite the powerful analysis of the noble Baroness, Lady Bull, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Thomas of Gresford, I agree with the Minister’s argument in Committee—which he seems to have repeated in his meeting with the noble Lords—that the Bill in its unamended form enables the Parole Board to fully consider the offender’s state of mind and their reasons for not disclosing the requisite information.

As was pointed out in our earlier debates, when considering the public safety implications of permitting a long-sentenced offender to return to the community, the Parole Board is looking at information and coming to a decision many years after the offence and the trial. A finding made by the trial judge shortly after the verdict about the offender’s failure to disclose the site of the victim’s body or—as the noble and learned Lord, Lord Hope, properly reminded us—the identities of children in criminal images is valuable, and will surely be brought to the Parole Board’s attention, as will be the effect of that finding on the judge’s sentence. However, as the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out in Committee, we need to be careful not to confuse punishment for the original crime and the public safety implications of the prisoner’s much later release.

It must seem to many noble Lords that, not for the first time, I have got to the church by way of the moon. However, in short, let us leave the Bill as it is. It will be no more effective if amended.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I agree with the noble and learned Lord, Lord Garnier: the Bill is best left as it is. Although it is a limited purpose Bill and to be welcomed, there is plainly a need for a proper review of the Parole Board in due course. That is the occasion on which we should look at matters in the round.

In my experience, the Parole Board approaches the exercise of its discretion with the greatest possible care and, in cases where there are issues of mental capacity, takes infinite care to ensure that it has available all the necessary information, including reports from the prisoner. Occasionally, mistakes are made. However, there is always the remedy of judicial review, and it seems to me that it would be much better to leave the Bill as it is, allowing any errors on matters as obvious as mental capacity or findings of the trial judge to be taken into account. The Bill should be left alone; we should not amend it.

Earlier this week, we considered the state into which the law of sentencing has got by a piecemeal approach. It is not something we should do in criminal justice. Although I shall have something to say in detail about Amendment 3, I accept entirely the analysis of the noble Baroness, Lady Bull, and that of the noble and learned Lord, Lord Hope of Craighead. However, my acceptance of their analysis of the proper approach does not persuade me that it is necessary to amend the Bill. The issues can be safely left to the discretion of the Parole Board, and there is a remedy if it fails to do that.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Garnier Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I am obliged to the noble and learned Lord. There is no dispute between us; all three amendments should be approved, to reflect the changes resulting from removing the wider power. The Minister repeated his argument for why that power should be there. We have had this argument three times now. It was rejected when he put it to the Delegated Powers Committee, rejected when it was put to the Constitution Committee, and massively rejected when it was put before your Lordships’ House, so there is no point repeating it again.

The Minister said that we should be dealing with subsequent conventions by secondary legislation. We have made amendments in this Bill to the three conventions that we are bringing in today. We could not have done so if his Clause 2 powers had been there. I hope that he will bring back what was the view of everybody in the Chamber, apart from him—namely that the Clause 2 power should not be there.

[Lord Garnier (Con) [V]]

My Lords, as is often the case with legislation bringing treaties into domestic law, the meat of this Bill is to be found in the schedules rather than the clauses. Unfortunately, there was some gristle in Clause 2 that made it less palatable. That said, there has been a universal desire to see the three conventions in question come into our post-EU domestic law, and, subject to the already-announced recognition of the points made on Report on 17 June by the noble and learned Lord, Lord Wallace of Tankerness, in relation to the Hague Convention 2000, the real substance of this Bill has been agreed. I congratulate my noble and learned friend the Advocate-General, who has been carrying the Bill more or less on his own.

However, I also commiserate with him on coping with the gristle. He has not looked, still less asked, for sympathy from any of us. I dare say that he might have hoped for more voluble support from this side of the House, but as the experienced advocate that he is, he has not revealed his disappointment, even when the noble and learned lord, Lord Mance, disobligingly compared him to Monty Python’s armless and legless Black Knight.

Unquestionably, the provisions in Clause 2, which gave the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome, by the Constitution Committee, the Delegated Powers Committee and contributors to these debates. When the Bill goes to the other place, I trust that the Government will not use their large majority there to restore the Bill to its original form.

Having said that, I would not want the noble and learned Lord, Lord Falconer of Thoroton—who is just as much a politician as he ever was in government 15 years ago—or the Labour Party, to claim that the amended Bill shows them in an altogether angelic light. In these proceedings they have no halo to burnish. As they know only too well, and as was graciously accepted by the noble Lord, Lord Blunkett, in Committee, there were times when the noble and learned Lord, Lord Falconer, and his colleagues in government enthusiastically gave the Executive extensive Henry VIII powers—powers he now decries. The same could be said of my Liberal Democrat partners in the coalition Government and, I readily confess, of me.

However, let us in a Bill of this type and content, cast political point-scoring aside and do two things. First, we should send this Bill to the other place with our strong advice that those Henry VIII powers that were once in the Bill should stay out of it so that the three conventions can be brought back into our national law as soon as can be sensibly arranged. Secondly, we should invite a Joint Committee of both Houses thoroughly to investigate and review the use of Henry VIII powers and make recommendations on their future use. The Clause 2 powers were by no means the most egregious example of them, but I am not alone in thinking that Ministers should not make or amend the criminal law or the substantive law more generally by secondary legislation. That should be confined to administrative and simple regulatory matters.