Crime and Policing Bill

Debate between Lord Goldsmith and Baroness Deech

Report stage
Monday 9th March 2026 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I put my name to Amendment 371A, tabled by the noble Lord, Lord Walney, and I will say a word about it, because it is a bit of an unusual event for me to do that. But I will take also this opportunity to say something about the amendment to that amendment proposed by the noble Lord, Lord Davies of Gower.

I have, in essence, two reasons for supporting the amendment from the noble Lord, Lord Walney. Obviously, he did it from a position of great knowledge and experience in these areas, and I therefore take what he says and proposes very seriously. The first reason is that he is suggesting that particular conduct should be illegal—and can it be doubted that it should be? The constituent elements of this would be serious crime being promoted deliberately for the purpose of persuading of a particular political point of view; activities that create a “risk of serious harm” to public safety, democratic institutions or the rights of others; and that it should be for Parliament, on the application of the Secretary of State, to determine whether a particular group satisfies those requirements. That makes it, in my view, right for it to be unlawful, without having to go through the difficulties—referred to already by noble Lords—of proscribing an organisation as terrorist. I am not expressing any view on that; I actually supported what the Government did, but it is now for the courts to make their determinations, and I do not want to say anything that might suggest otherwise.

This amendment, if it were the law, would make it very clear that, in a limited category of case, where these requirements are met, it would be undoubtedly illegal without having to have issues. There are safeguards there: Parliament has to be involved in that. Secondly, it is clear that it is not proscription as terrorism: that is stated clearly in the amendment. Thirdly, all these elements need to be satisfied. That is why I come back to Amendment 371B from the noble Lord, Lord Davies of Gower. I do not support that because it would have the effect of diluting the requirements by making it possible for this to be an offence, even though one of the conditions described in his amendment as conditions 2 and 3 was not met. So, for example, it would mean that, even though the activities do not create a risk of serious harm to public safety, democratic institutions or the rights of others, it would be an offence. That goes too far for me, which is why I would not support his Amendment 371A.

The other issue that will be raised—I am sure that it will be raised by my noble friend the Minister, whom I thank for seeing me, too, to discuss the amendment—is the timing. I, too, have great respect for the noble Lord, Lord Macdonald of River Glaven; he and I worked very closely together when we were in government, when he was the Director of Public Prosecutions, and I look forward very much to what he has to say. But I am troubled. It will take some time, and there will then have to be a decision by government as to whether it accepts the recommendations. There will then need to be legislative time—and one thing I remember very well from government is the issue of finding legislative time. We have a vehicle here. If this is the right thing to do, this is a moment when it can be done. That is why I regret to say to my noble friend that I support this amendment and I have added my name to it.

[Baroness Deech (CB)]

My Lords, I have added my name to Amendment 419 in support of the noble Lord, Lord Goodman, and the other signatories. It calls for a counterextremism strategy to be published annually. I am also in support of the gist of all the amendments in this group, which are trying to plug the gap in the law exposed by the unwillingness to follow through on the proscription of Palestine Action, in so far as its supporters may be labelled terrorists, but recognises that the activists are carrying out acts of terror, as the court said, that damage the public and our infrastructure.

The Government will no doubt say that they have a strategy, newly issued as Protecting What Matters. At a time of tension, starting long before the current war with Iran but exacerbated by it, the Government have to confront real threats, exemplified, inter alia, by the arrest of four men suspected of working for Iran and being involved in threats to the safety of our community. There have been more than a dozen Iranian-backed attempts at kidnap and murder of our citizens in the last few years, with no doubt more to come. We are talking about matters of life and death.

The Government’s report allegedly identifies Islamist extremism as responsible for most of the terror-related deaths in the past 25 years—and it is good to see the Government saying what is sometimes deemed unspeakable. The Government are also right to resist any attempt to introduce a blasphemy law into Britain. We recall the innocent Batley grammar school teacher still in hiding, simply because he was being a professional teacher. Fortunately, Hamit Coskun was acquitted after burning a Koran: a nasty act, but not one deserving of special punishment. We remain committed to freedom of speech, no matter how rude, and it is not to be silenced by others who find it offensive in their view.

However, I see some blurring of responsibility in the Government’s document, as I saw it reported, when it comes to tackling Islamism. What is the difference between that ideology and Islam in general? Is there not a sliding scale from, at the extreme end, wanting to cover the country with sharia law at the expense of secular law, and at the other going on to be more motivated by what one’s religion might demand, supposedly, than by the law of the land? Continuing on the blurring theme, if the Government’s strategy requires the appointment of an anti-Muslim hostility tsar, this is moving away from equal treatment and leaving the door ajar for unquestioned extremism. The definition of anti-Muslim hatred takes us into the realm of policing offence and dilutes the need to call out extremism and danger if perceived. If divisive content is to be regulated, who determines that, save the noise and outrage from those who feel they are being attacked, again risking muzzling dissent and free speech?

The government report, I fear, is inadequate in protecting the Jewish community. Jews do not count. We number precisely 0.4% of the population. But Jews, young and old, are under threat and confront hatred every day in the streets, in schools, in hospitals, in the arts and online. I welcome the Government’s decision to set up a commission to inquire into antisemitism in schools, but it is slow. Antisemitism today is disguised as anti-Zionism, as the late Lord Sachs pointed out. We see right through that. There is no hatred based on, say, China’s treatment of minorities, or Russia’s, or African states’ treatment of Christians. Jews are singled out. The policing of hate marches and vandalism in the name of politics must be strengthened, and it is not going too far to say that the Jewish community’s trust in the police and the BBC is faltering. The law must set out police powers in this respect, and vandalism, even in the name of politics, must be severely punished. To see the statue of Churchill defaced tells you all you need to know about countering extremism. How much worse it will be if ever there is a start on building a huge, brutal Holocaust memorial next to Parliament.

There is more complication to come. It is reported that the noble Lord, Lord Walney, who deserves the utmost admiration of this House in his standing up to terror and extremism and the defence of our values and freedom, is to issue a report, Undue Influence, which blows the Government’s document out of the water. The noble Lord allegedly reports that there are 30 or so charities linked to Iran that maintain influence here and plot attacks against dissidents and the Jewish community. Some of them are already under the too-slow investigation of the Charity Commission, though it is not its fault, which has called for greater powers. Most chillingly, the noble Lord suggests that there is a reluctance to call them out for fear of being labelled Islamophobic, a fear that might only become worse if the Government’s strategy of tackling what they see as Muslim hatred is put into place. That would muffle still further any attempt to expose what might be going on by way of extreme risk.

On the one hand, the noble Lord, Lord Walney, warns that fear of being labelled racist has stultified the tackling of Iran-linked organisations, while, on the other hand, the Government want the anti-Muslim hatred tsar to protect Muslims from hate and discrimination. The noble Lord calls for more assertive regulation, but the Government want a cohesion strategy that plays down the danger and reassures Muslim communities. The Government’s proposals, as I read them, would increase the fear of being labelled racist or Islamophobic. It would make regulators more cautious and be weaponised by hostile activists to deflect attention away from their plans. The Government’s tsar must be completely limited, if it comes about, to hate crime: regulation should disregard religion and focus on criminal behaviour. A line must be drawn between domestic problems and the influence of Iran and other hostile states. Criticism must not be silenced.

In considering its balancing act, the Government must weigh, on the one hand, the atrocities committed by Islamists in, inter alia, the Manchester Arena, London Bridge, Westminster Bridge, the Underground, the Lee Rigby murder, Glasgow Airport, Heaton Park—and there are other incidents—and the risk, on the other hand, of not allowing the identification of further such calamities for fear of Islamophobia. The Government need to draw up a new strategy that protects Muslims at home from discrimination but does not create an atmosphere that allows hostile organisations to cry Islamophobia when their activities are under scrutiny for fear of terrorism. It is a difficult task, which is why the noble Lord, Lord Goodman, and I and the other signatories of this amendment are asking the Government to accept this amendment and move forward.

European Union (Withdrawal) (No. 5) Bill

Debate between Lord Goldsmith and Baroness Deech

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Goldsmith]

The noble Lord is quite right that that is a very important point. It was raised at Second Reading that the Government felt strongly, and I understand why, that the royal prerogative should not be subject to at least inadvertent erosion. Of course it has been eroded in certain respects over the years; we do not need to go into what they are but they include treaty making and waging war.

I take from the noble Lord’s point this observation: one great benefit of the amendment proposed by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, is that it makes clear that the royal prerogative is being maintained. I want to avoid seeing that apparently contradicted by other provisions in the Bill.

I have one other observation to make. I said a few moments ago that there were certain things that could happen: the European Council might accept the proposal or it might come up with another one. However, there is a risk that there might be no agreement at all; that needs to be considered. We have had discussions with the Government. I look to the noble and learned Lord, Lord Callanan—I am sorry, the noble Lord. He should be noble and learned as he has had to deal with so much of this Bill already; we will see if we can arrange that. I anticipate that he will give an assurance that, in the event that there is no agreement, the matter will be brought to the other place as soon as possible. Indeed, we expect it to be brought there this week, otherwise it might simply be too late.

When the noble Lord comes to respond on this amendment, I look forward to hearing what he says about that, and I hope he will give us sufficient assurance that if there is in fact a failure to agree at the European Council meeting then the matter will come back to the other place, which will therefore be able to debate what should happen next. It should do so on an amendable Motion so that it can put forward and support its view on what should take place. I do not know whether it would be for the convenience of the House if the noble Lord could tell us now what he will be able to say but, if not, I look forward to hearing what he says when he comes to respond to the debate.

[Baroness Deech (CB)]

My Lords, I tabled Amendment 6.

European Union (Withdrawal) (No. 5) Bill

Debate between Lord Goldsmith and Baroness Deech

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I am happy to support the Bill from these Benches, and I thank my noble friend Lord Rooker for bringing it to this House. I share the view that has been expressed that it would have been better if the Government had brought it, but we are where we are. I look forward to seeing it pass.

The purpose of the Bill was expressed quite shortly by my right honourable friend Yvette Cooper in the other place. I will quote what she said, which seems so right:

“The Bill simply provides for a simple, practical and transparent process to underpin the Prime Minister’s plan. It ensures that the extension has the support of the House of Commons, but also that we keep the parliamentary safeguard in place… She has recognised that she cannot implement anything in only nine days, which is why the extension is needed. This is a hugely important Bill”.—[Official Report, Commons, 3/4/19; col. 1135.]


I agree with that. It was described by the noble Lord, Lord Anderson of Ipswich, as a modest Bill. Modest it may be and, in certain respects, that is much to its credit, but it is an important Bill because of the issues that so many noble Lords have spoken about this evening. As the noble Lord, Lord Cormack, said:

“It was created in a vacuum, and the vacuum was created by a lack of leadership”,


because of uncertain times.

In listening to this debate, three points came across to me. The first was objection to the Bill from those who either view a no-deal Brexit with insouciance or actually welcome it. A number of noble Lords spoke in that way, such as the noble Lord, Lord Howard, who knows the high respect in which I hold him, the noble Lord, Lord Willoughby de Broke, and my noble friend Lord Howarth of Newport, for whom I also have great respect. I profoundly disagree with their view that a no-deal Brexit is not a great problem.

This evening we heard from the noble Lord, Lord Stern of Brentford, important evidence-based concerns about what a no-deal Brexit would do. Other noble Lords have spoken about that in detail, and I want to add the reference that has already been made, although belatedly, to what Sir Mark Sedwill has said about the risks. It is not, as the noble Lord, Lord Fairfax of Cameron, described it, “a little short-term inconvenience”. Those are the merits of the principal point that has been debated.

The noble Baroness, Lady Wheatcroft, rightly described the problem not so much as not trusting the Prime Minister, but not trusting the circumstances in which she finds herself and the people she finds around her. It is therefore an insurance policy. It may well be that, without this, the Prime Minister is able to achieve what she now wants, but it is important to have an insurance policy, as my noble friend Lord Liddle described it.

That took up most of the debate this evening. The second main point was the question of constitutionality. The noble Lord, Lord Norton of Louth, referred to that. I was privileged to sit on the Constitution Committee when he chaired it, so I always listen to what he says with great respect. The problem is that we are in, as my noble friend Lord Liddle said, perhaps the gravest crisis since the Second World War and exceptional circumstances require exceptional measures. They are exceptional in a number of respects, not just because of the gravity of the situation with which we are faced but because of the apparent lack of ability of the present Government to solve it. That has led to the other place taking the view that it must step in to help resolve the problem.

There is a need for the Bill. It is important that we respect the other place, which has sent it to us. We will be giving it scrutiny, and I am glad that we will now continue this debate in Committee next week, although I have something to say about the critical need to get it done on Monday.

I am also glad, as the noble Lord, Lord Cormack, said, that we have been able to have this Second Reading debate in a much better atmosphere than we had earlier in the day. It was an unpleasant afternoon for all of us. The comments made about Sir Oliver Letwin were uncalled for. He did not deserve them, given what he has been trying to do in the interests of the country, having been a loyal servant of the public. Although he did not come up so much in this debate, I also mention Dominic Grieve, who was my shadow when I was Attorney-General. A more honourable and honest man I do not know. I agree with the noble Lord, Lord Cormack, that it was a pleasure to see the noble Lord, Lord Spicer, back in his place.

A number of noble Lords, including the noble Lords, Lord Howell of Guildford and Lord Cormack, and the noble Baroness, Lady Noakes, referred to the importance of compromise. The Bill at least provides an opportunity for that to take place. Whether it happens is another matter.

I am very conscious that the House has been debating this, one way or another, for a number of hours, so I will wind up quite quickly. On the detail of the Bill, the noble Lord, Lord Pannick, raised the most important point about the royal prerogative. Following on what the Leader of the House said, the noble Earl, Lord Cathcart, raised the danger of the Prime Minister finding herself in a situation where something is offered which she would want to accept but which is not actually covered by the Motion that has been passed by the House. Does she have to come back? That ought to be looked at and, for our part, we will look at it before this matter comes back next week.

I want to underline, and end on, the importance of getting this done. Noble Lords will be aware, because they will all have read the Bill carefully, of the way it works. The day after Royal Assent is given, a Motion needs to be presented to the House of Commons—which it might or might not accept—setting out the time for the extension. That gives rise to two issues. One is that it is proposed by the Government—I would anticipate, by the Prime Minister—for the other place to consider. It is not the European Union setting out the timetable, but the Prime Minister must be given the date in time to pass it to the members of the European Council so that they can consider it before they meet on Wednesday. They will not thank anybody, I understand, if they are given it with very short notice. It is obviously an important decision for them and they will want to discuss it among themselves. That is why we must reach the position on Monday where we have dealt with all amendments in time for the other place to also deal with them that day and Royal Assent be given, so that the following day, Tuesday—only one day before the Council meeting—a decision can be reached on the timing.

A number of noble Lords have expressed happiness that we have been able to reach an agreement so that this does not go through the night tonight, but that was on the basis that we will conclude this on Monday—the Chief Whip talked about 8 pm. I hope all noble Lords will be able to co-operate on that. We have our work cut out, but not if we do it efficiently. At the end of the day it remains quite a straightforward and simple Bill, which we will be supporting.

[Baroness Deech]

The noble and learned Lord referred to this as the greatest crisis since the Second World War. Briefly, that brought to mind the famous case of Liversidge v Anderson, the facts of which I need not remind him of. There were emergency powers and the majority of the court held, “Yes, that’s all right, let’s lock this chap up”. The judgment we remember now, and it was famous even then, was the judgment of Lord Atkin, who said:

“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace”.


We stick to the principles we have always had. His reference to Second World War reminded me of that: when you have an emergency—and I would not compare this with the Second World War—it is all the more important to use the proper constitutional principles.

[Lord Goldsmith]

I am grateful to the noble Baroness. I remember that case very well, of course, though I did not have the pleasure of being one of her constitutional class. Of course, what the House of Lords decided in that case was that it was not for individual Ministers to make decisions; that is what the case was about. It was about control of executive power: they were not to make determinations themselves. In this case, the Bill seeks to give primacy to the House of Commons to enable its decision, perhaps in the face of the wishes of the Executive, to be effected.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Baroness Deech

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Deech (CB)]

My Lords, I am trying to clarify what the noble Baroness, Lady Falkner, said. I think the issue is not “appropriate” versus “necessary” but “the Minister considers”. I believe the point the noble Baroness was making is that, if something has to be “necessary”, that leaves it open for a court to say whether or not it was necessary. If you say “the Minister considers it”, then the issue is whether the Minister genuinely considers it.

[Lord Goldsmith (Lab)]

My Lords, and what is wrong with that?

In Committee, in a most powerful speech, the noble Lord, Lord Wilson of Dinton, with his vast experience from inside the Civil Service, from knowing just what civil servants and Ministers would like to do, gave your Lordships the advice that,

“in this case, I think the scale of the powers proposed is so extensive that we should lean against giving Ministers plump cushions of legal protection”—

a very telling phrase. He continued:

“it should be the strict discipline of an objective test of what is necessary”.—[Official Report, 7/3/18; col. 1180.]

I respectfully completely agree with that. It is absolutely the case that, in circumstances where great powers are being given, one needs to be very clear where the discretion lies. Here it is not just Ministers but civil servants. We have been told that there are 109 Ministers, but under the Carltona principle—I have made this point several times and no one has yet contradicted it—many civil servants themselves in effect exercise these powers in the name of the Minister.

So Ministers and civil servants do what they think is appropriate. That is very different from things that are necessary in order to achieve the objectives set out in the clause. As a practising lawyer, I have no difficulty with the concept of what is necessary, but I believe—to use the words of the noble Baroness, Lady Falkner of Margravine, in a different context—that there is a profound distinction between saying, “You can do what you as a Minister consider appropriate”, and saying, “You can do only what is necessary to achieve these objectives”. If this House has a responsibility, I respectfully suggest that it is to ensure that we do not give the Executive more power than is necessary in order to achieve their objectives. The amendment would achieve that. If the Government want to come back with further clarification on the meaning of “necessary”, although I do not believe that is necessary at all, they can do so.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Baroness Deech

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Goldsmith]

I come back to the central point I want to make. The Government made it clear and promised that rights would remain the same on exit day, but they could then be subject to change through the processes agreed and determined by this Parliament. Of all EU laws, the charter alone is being excluded. That drives one to question why that should be. Is it an ideological reason? Is it not wanting to see something that has “EU” attached to it? Or is it—which will be even more sinister and would worry me enormously—that there is an unhappiness and suspicion about fundamental rights? If there is any element at all that what lies behind this is a suspicion about fundamental rights and a suspicion that people should not be able to exercise those rights, that would be deeply unsatisfactory and a very good reason for not accepting the Government’s exclusion of this.

[Baroness Deech]

Would the noble and learned Lord agree that what is special about this is that the judges of the ECJ, whatever sort of court he estimates that to be, will keep interpreting those rather vague principles on and on, decade after decade, and that all those interpretations will have to be brought back here, unforeseeable and maybe irrelevant as they are? That is what is different about it.

[Lord Goldsmith]

I am advised that that is not a request for clarification which is appropriate on Report. I have dealt with this question before. After exit day, it will be British judges who interpret the EU retained law. There are questions about regard they will have to decisions which relate to the same law afterwards—those we will debate at another time during Report—but the idea that, if the charter is included, there will be references to the Court of Justice of the European Union is simply not right.

I have been driven, and I apologise for it, to the view that it is an ideological reason, and we have heard one or two speeches which seem to support that, but the people outside here—it is delightful that we still call them the people on the Clapham omnibus in court and in this place—will wonder what it is. They will look at the charter; they will see the rights in it, all of which they would think are very good things to have—they would not perhaps understand all the details as when they apply and when they do not—and wonder what the Government are doing in saying that it alone is excluded. There has never been a good answer for that. I do not anticipate that we will get it now either. The noble and learned Lord asks why not. It is because he and I have spoken about this several times and I have not heard it yet.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Baroness Deech

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Goldsmith]

I am suggesting that the charter is brought into domestic law in the same way as all the other provisions of EU law will be brought into domestic law by this Bill, if it is passed. That means that they will be subject to the powers in the clauses that will be passed for amendment through orders, if this House and the other place approve that way of doing it. They will also, of course, as always, be subject to amendment by primary legislation. I will come on to this, but it is interesting that special protection is given to the ECHR through the Human Rights Act to protect it as we go forward, but there is no protection provided at all for the rights which underlie the charter. That is one of the deficiencies that are not taken account of in the Government’s proposal.

[Baroness Deech]

Does the noble and learned Lord accept that perhaps we are being tied in knots by his argument? The nub of the charter, and why it is different from the European Convention on Human Rights and our Human Rights Act, is that the charter says that judges can set aside, invalidate or nullify our Acts of Parliament. That is the nub of it and is why it does not sit with the rule of law and parliamentary sovereignty. If you incorporate it in domestic law, you are in a real tangle, because if you try to repeal it, judges could set that aside. You end up in a vicious spiral.

[Lord Goldsmith]

I am grateful to the noble Baroness for the intervention. Of course it is not the charter which provides that, in certain circumstances, our courts have the ability to disapply domestic law; it is EU law and its ability to override Parliament. That is not what the charter has created; it is EU law that has created it. That is something which this Bill is intended to remove.

I want to get back on to the reasons why. The first reason put forward—this is the nub of the question put to me by the noble Lord, Lord Lawson—is that the charter merely codifies existing rights and principles.

--- Later in debate ---

[Lord Goldsmith]

That will depend on the shape of the Bill when it is completed—in particular, what is said about the provisions which deal with primacy of EU law—but at the moment, as the noble and learned Lord will know well from the cases he sat on, people have been bringing cases by reference to both the charter and the convention. One reason for that is that the protection under the charter is more powerful. In future, if people want protection of human rights, they will want the more powerful protection, and if that remains available after the Bill is enacted, they will look to it.

[Baroness Deech]

So if that protection is more powerful, the entire British structure relating to human fertilisation and embryology, which is very liberal and go-ahead, could be wiped out by the application of Article 3. It is very fortunate that the bodies opposed to our progress in reproductive rights have not cottoned on to that. It talks about the prohibition of eugenics, whatever that is, and selection of persons. By interpretation, it would stop us doing mitochondrial research, selection of embryos to screen out disease and a whole host of other things. Another article ensures continuing freedom of movement. Surely we do not want that.