Safety of Rwanda (Asylum and Immigration) Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments
Tuesday 16th April 2024 Lords Chamber

Moved by

[Lord Hope of Craighead]

At end insert “, and do propose Amendment 3E as an amendment in lieu of Amendment 3C—

3E: Clause 1, page 2, line 31, at end insert—
“(7) The Republic of Rwanda cannot be treated as a safe country for the purposes of this Act until the Secretary of State has obtained and laid before Parliament a statement from the independent Monitoring Committee formed under Article 15 that the Objectives referred to in Article 2 of the Rwanda Treaty have been secured by the creation of the mechanisms listed in that Article.
(8) The Republic of Rwanda will cease to be a safe country for the purposes of this Act if a statement is made to Parliament by the Secretary of State, on the advice of the Monitoring Committee, that the provisions of the Rwanda Treaty are no longer being adhered to in practice.””

[Lord Hope of Craighead (CB)]

My Lords, I asked for this amendment in lieu to be put down because I believe that Lords Amendment 3C—to which I propose Amendment 3E in lieu—raised important issues to which further thought still needs to be given by the other place. If I do not receive a satisfactory reply, it is my intention to test the opinion of the House on this amendment.

My amendment as now phrased seeks to add two provisions to Clause 1. That clause states, as we know, that the Act

“gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.

In other words, it is a country from which persons who are sent there will not be removed or sent to another country in contravention of any international law, and, further, their claims for asylum will be determined and treated in accordance with that country’s obligations under international law as well. As the noble and learned Lord, Lord Stewart of Dirleton, said on an earlier group, that provision is central to the entire provisions in the Bill—it is a crucial provision on which so much else depends.

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[Viscount Hailsham (Con)]

No. I have been speculating on whether we will be asked to a party, to which we might or might not be invited, or whether there will be a parliamentary Statement or whether the Government will bring forward a Bill to repeal this Bill. There are a number of possibilities, but we have not been told and, so far as I am aware, the Minister has not been told either—though he could go and take advice from the Box, if he so chose, because he has officials in this Chamber who could doubtless advise him.

So we have a real problem, and it is addressed by the amendment moved by the noble and learned Lord. The amendment has advantages, in that it does not deny parliamentary sovereignty and it retains the accountability of the Secretary of State, but it has one disadvantage in that it is silent as to what happens if the Secretary of State makes a statement to the effect that Rwanda is not a safe country. I am not quite sure what happens in legal terms at that point, but I am certain that it is an important step forward. We would be making progress if we accepted this amendment, and if the noble and learned Lord tests the opinion of the House, I shall be supporting him.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I might respond to the noble Viscount. The provision in proposed subsection (8) simply states that, if the Secretary of State makes such a statement to Parliament, Rwanda will not be safe for the purposes of the Bill. I think that is as far as one can go, but if there is anything wrong with it, it is up to the Government to sort it out.

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[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who have spoken. Picking up immediately on the point the noble Lord, Lord Sharpe of Epsom, has just made, he said that if matters change the Government would not be obligated by the treaty to remove people to Rwanda. The problem for the Minister is that Clause 2 states:

“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”.


That is without any limit of time. Furthermore, the Minister might care to read the clause more carefully, because the words “decision-maker” include the Secretary of State himself, so he is obligated by the statute to assume that Rwanda is a safe country. Whatever the treaty may say, the statute binds him to do that. This is a ludicrous situation that the Government, for some strange reason, refuse to address. The situation requires being looked at again by the other place. Therefore, I wish to test the opinion of the House.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments
Wednesday 20th March 2024 Lords Chamber

Moved by

[Lord Hope of Craighead]

At end insert “, and do propose Amendment 3B in lieu—

3B: Clause 1, page 1, line 12, leave out “is a safe country” and insert “will be a safe country when the arrangements provided for in the Rwanda Treaty have been fully implemented and for so long as they continue to be so.””

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[Lord Hope of Craighead (CB)]

My Lords, with the leave of the House, I shall speak also to my Motion B2 and to Amendment 3C in lieu.

I asked for these amendments in lieu to be put down because I believe that Lords Amendments 2 and 3, to which I propose Amendments 3B and 3C in lieu, raise important issues to which further thought needs to be given by the other place. I should make it plain that it is my intention, if I do not receive a satisfactory reply, to test the opinion of the House on both amendments.

Clause 1(2) of the Bill states that

“this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.

That proposition lies at the very heart of this Bill; everything depends on it. Careful thought therefore has to be given to the use of the word “is” in that statement. What does it mean? What are its consequences and what does it lead to? I have been teased by some Members on these Benches behind me for picking on one of the shortest words in this entire Bill, but there is a really important point here. I am doing what lawyers tend to do and that is to look at words and ask what they really mean. That is why I suggest that we have to get that word right.

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[Lord Horam (Con)]

The noble and learned Lord quite rightly quoted the views of Sir Jeremy Wright, Sir Bob Neill and Sir Robert Buckland from the debate in the Commons on Monday night. He could also, in fairness, quote the response from the Minister, Mr Tomlinson. His response, if I have it right, was that what the Government were looking for by compensation for whether the Bill was actually working in practice was that this was the role of the monitoring committee. There is a danger here of extending the law beyond what is reasonable. There comes a certain point where the law has to be left where it is and the people on the ground—namely the monitoring committee, which is an independent body—have to be the guardians of what happens. Surely that is the role of the monitoring committee, and if it always has to refer back to Parliament, surely there is something deficient with its set-up. I therefore ask the noble and learned Lord to consider that. I understand why he would want this to be referred back by this House, but there is a role for the monitoring committee that we should not ignore.

[Lord Hope of Craighead (CB)]

I am extremely grateful to the noble Lord for his point. I imagine that the monitoring committee was put there at the request of His Majesty’s Government because something needed to be done to keep an eye on what was going on in Rwanda. It is made up of people who are independently appointed, with no allegiance to either Government, so one can trust them as looking at the matter dispassionately, and therefore their advice can be trusted. That is why I have introduced the monitoring committee into my amendments as the best way of finding out whether the treaty is being properly implemented.

If I followed the noble Lord’s intervention correctly, I agree with what he is saying. However, on the other hand, I accept the point made by Sir Jeremy Wright that, in the end, Parliament has to have the final say based on the advice which it receives. There has to be some mechanism so Parliament can comment on it before the fact that Rwanda is safe is reversed. How that is to be done I simply do not know, which is why I am anxious that the Government should be able to have another look at it and decide how best to proceed. However, I thought it right that Parliament should have an opportunity to comment before the conclusion is reached that Rwanda is no longer safe. I hope that answers the noble Lord’s question.

The Minister in the other place said that my amendments should be resisted because they risk

“disturbing the independence and impartiality of the monitoring committee”.—[Official Report, Commons, 18/3/24; col. 663.]

I simply do not understand that, because the members are all independent and nothing in my amendments would in any way undermine their independence. I am very glad that the Minister here, when he was introducing this debate, did not put that point forward as a reason for resisting my amendments.

As for the Commons reasons set out in the Marshalled List, which I think the Minister here endorsed, they say that

“it is not appropriate … to legislate for Rwanda adhering to its obligations under the Treaty”,

as those obligations

“will be subject to the monitoring provisions set out in the Treaty”.

However, that fails to address the problem that is created by the use of “is”, especially should something go wrong and it is apparent to the monitoring committee that Rwanda is no longer safe. I think the Minister was suggesting that in some way it was wrong that the Government should enter into discussions with the monitoring committee, and that in a way that would undermine its independence. However, I am not asking for that. I am simply asking for it to receive advice—that is all. The advice is given; I am not suggesting that it needs to be discussed or indeed that there should be any sort of conversation, simply that it would be given.

I have probably said enough to make my points clear, and for the reasons I have given, I beg to move.

[Lord Falconer of Thoroton (Lab)]

My Lords, I will update the House on a further development in relation to the amendment in the name of the noble and learned Lord, Lord Hope. We had the privilege in the Constitution Committee this morning to have the Lord Chancellor give evidence to us. We spoke of the Rwanda Bill and raised specifically with him the question that the effect of the Bill is to say that Rwanda “is” a safe country, and that the Bill once passed means that for ever and ever it will be treated as a safe country. His response, unprompted, was that one of the great protections was the monitoring committee. He said that if the monitoring committee said that the provisions of the treaty were not being adhered to and that was made public—he envisaged that it would be made public —the consequence would be that it could lead to some sort of parliamentary debate or occasion. What he had in mind was not the automatic non-application of the Bill, as with the amendment of the noble and learned Lord. However, there is not much difference between what the noble and learned Lord proposes—namely, that if the monitoring committee says it is not being adhered to, it stops applying—and what the Lord Chancellor said: namely, that there would be the opportunity for a parliamentary occasion. Therefore, I strongly support what the noble and learned Lord said. An unanswerable part of his argument is that this must be sent back to the Commons so that it can express a view and we can hear more from the Lord Chancellor in relation to this.

On a completely separate point, I apologise for interrupting the noble Lord, Lord Sharpe, before the Question was put. He said that the Rwandan Government— I am not sure quite how it works—were going to put a Bill somehow to the Rwandan Parliament to implement the terms of the treaty. That is separate from the point that the noble Lord, Lord Murray, made. Could the noble Lord, Lord Sharpe, give an assurance to the House that the treaty will not be ratified and, therefore, that the Bill will not come into force until the Rwandan Bill has gone through its Parliament and been given effect to?

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[Lord Sharpe of Epsom (Con)]

Well, no. As I was not party to the comments of the Lord Chancellor, I think it would be very foolish of me to try to second-guess what he may have meant by that comment.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have spoken in this debate, particularly the Minister, for the careful way in which he replied. There is only one thing I should say, and it is in response to the noble Lord, Lord Lilley: he is absolutely right that there was a list of safe countries in that legislation, and it certainly did not occur to me to question the proposition in that Bill.

But everything depends on the context, and we are dealing here with a Bill that has fenced around with barbed wire every possible occasion, as I said on an earlier occasion, to prevent anybody bringing any kind of court challenge whatever to protect their human rights and other rights in the event of their being faced with being sent to Rwanda. That context transforms the situation entirely from the measure the noble Lord was talking about. That is why, I suggest, it is so important to get the wording of that crucial sentence in Clause 1(2) of the Bill right. It is for that reason that I wish to test the opinion of the House.

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Moved by

[Lord Hope of Craighead]

At end insert “, and do propose Amendment 3C in lieu—

3C: Clause 1, page 2, line 31, at end insert—
“(7) The Rwanda Treaty will have been fully implemented for the purposes of this Act when the Secretary of State has obtained and laid before Parliament a statement from the independent Monitoring Committee formed under Article 15 that the Objectives referred to in Article 2 of the Treaty have been secured by the creation of the mechanisms listed in that Article.
(8) The Rwanda Treaty will cease to be treated as fully implemented if Parliament decides, on the advice of the Monitoring Committee, that the provisions of the treaty are no longer being adhered to in practice.””

[Lord Hope of Craighead (CB)]

My Lords, I wish to test the opinion of the House.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

Moved by

[Lord Hope of Craighead]

4: Clause 1, page 1, line 12, leave out “is a safe country” and insert “will be a safe country when, and so long as, the arrangements provided for in the Rwanda Treaty have been fully implemented and are being adhered to in practice.”
Member's explanatory statement
This amendment, read with new sections 1(7) and 1(8), seeks to give effect to the proposition that Parliament cannot judge Rwanda to be a safe country until the Rwanda Treaty has been, and continues to be, fully implemented.

[Lord Hope of Craighead (CB)]

My Lords, there are four amendments in this group, all of which are in my name and to which the noble Lords, Lord Anderson of Ipswich and Lord German, and the noble Baroness, Lady D’Souza, very kindly added their names. They are part of a single package designed to address a serious flaw in the working of Clause 1(2)(b), which states:

“this Act gives effect to the judgement of Parliament”—

I emphasise “the judgement of Parliament”—

“that the Republic of Rwanda is a safe country”.

The word I am concerned with is “is”.

As we were reminded on the previous group, the Supreme Court expressed a view about this in November last year. It said that there were substantial grounds for believing that the removal of claimants to Rwanda would expose them to a real risk of ill treatment by reason of refoulement. Your Lordships have been asked to reach a different judgment. In other words, your Lordships are being asked to declare that Rwanda is a country to which persons may be removed from the United Kingdom in compliance with all its obligations under international law, and is a country from which a person will not be removed or sent to another country in contravention of international law.

It is not my purpose, for the purpose of these amendments, to question the right of Parliament to look at the facts again. The facts have changed since November 2022, which was when the facts were found on which the Supreme Court based its view. If Parliament is to make a judgment on a matter of fact of such importance, great care must be taken in the use of language. By its use of the present tense in Clause 1(2)(b), Parliament is asserting that from the date of commencement that is the position now, and it is asserting furthermore that it will be the basis on which every decision-maker will have to act in future. That will be so each and every time a decision has to be taken for ever, whatever happens in Rwanda, so long as the provision remains on the statute book. As the noble Lord, Lord Tugendhat, said, the answer will for ever be the same. That is the point to which I draw your Lordships’ attention in these amendments. Article 23 of the treaty provides that the agreement will last until 13 April 2027 but that it can be renewed by written agreement, so it may well last a good deal longer and there is no sunset clause in the Bill. That is the background against which I say that a great deal hangs on the use of “is”.

The judgment that your Lordships are being asked to make is crucial to the safety and well-being of everyone, wherever they come from, who is at risk of being removed to Rwanda. Given what refoulement would mean if it were to happen to them, this could be for some a life-or-death issue. The question is whether we have enough information to enable us to judge that Rwanda is safe now and that it will be whatever may happen in future. I do not think so. I do not think I can make that judgment. That is why I have introduced this amendment and its counterpart, Amendment 7.

Amendment 4 seeks to remove “is” from that clause and replace it with “will be” and “so long as”—in other words, Rwanda will be a safe country when and so long as the arrangements provided for in the treaty will have been fully implemented and are adhered to in practice. That would be a more accurate way of expressing the judgment that your Lordships are being asked to make. The point it makes is that full implementation of the treaty is a pre-requisite. The treaty itself is not enough; it has to be implemented. That is what I am drawing attention to. Without that—without the implementation that the treaty provides for—Rwanda cannot be considered a safe country; in my submission, the Bill should say so.

Of course, there must be means of determining whether full implementation has been achieved and is being maintained. That is provided for in my Amendment 7. I have based that amendment on the method that the treaty itself provides: a monitoring committee, the members of which are independent of either Government. We have been told that that committee already exists and is in action, so what I propose should not delay the Bill, and it is not my purpose to do so. I simply seek the security of the view of the monitoring committee. The treaty tells us:

“The key function of the Monitoring Committee shall be to advise on all steps they consider appropriate to be taken to effectively ensure that the provisions of this Agreement are adhered to in practice”.


The Government’s policy statement in paragraph 102 says of the committee:

“Its role is to provide an independent quality control assessment of conditions against the assurances set out in the treaty”.


The Government themselves, then, accept that entering into the treaty is not in itself enough. That is why they had asked for a monitoring committee to be set up, and precisely why my amendments are so important. The treaty must be fully implemented if Rwanda is to be a safe country. The point is as simple as that.

My Amendment 7 says:

“The Rwanda Treaty will have been fully implemented for the purposes of this Act when the Secretary of State has … laid before Parliament a statement from the … Monitoring Committee … that the objectives … of the Treaty have been secured by the creation of the mechanisms”


that it sets out. If the Ministers say that Rwanda is already a safe country, it should be a formality to obtain the view of the monitoring committee and it should not detain the Government for very long. All I ask is that we should have the security of the view of that Committee to make it absolutely plain before we can make the judgment that Rwanda is, and will continue to be, a safe country. My amendment would then require the Secretary of State to

“consult the Monitoring Committee every three months”

while the treaty remains in force, and to make a statement to Parliament if its advice is

“that the provisions of the Treaty are not being adhered to in practice”.

If that is so, the treaty can no longer be treated as fully implemented for the purposes of the Act until the Secretary of State has laid before Parliament subsequent advice that the provisions of the treaty are being adhered to in practice. All that is built around what the Government have provided before in their own treaty: the work of the monitoring committee, on whose judgment I suggest we can properly rely.

Finally, and very briefly, I say that my Amendments 8 and 13 would make the directions to the decision-makers in Clause 2 conditional on full implementation of the treaty.

I should make it clear that I intend to test the opinion of the House on my Amendment 4—and, if necessary, Amendment 7 as well—if I am not given sufficient assurances by the Minister. I will not move my Amendment 8. That is because I do not wish to pre-empt the alternative qualification of Clause 2 proposed by my noble friend Lord Anderson of Ipswich. His Amendment 12, if moved, will in turn pre-empt my Amendment 13. I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I add my tribute to those already paid to Lord Cormack. My particular knowledge of him is that, when I was briefly a Member of the other place, my constituency abutted his and we shared an agent, a Mr Clive Hatton. I learned from the assiduousness with which Lord Cormack worked in his constituency and the importance that he ascribed to it. There was no cause too small nor person too irrelevant that Patrick Cormack was not interested in looking after them and considering them. I learned a lot from him.

I turn to the matter at hand. I shall comment on this group of amendments and, in doing so, pick up on some of the remarks I made in our debate on the Motion from the noble and learned Lord, Lord Goldsmith, on 22 January. I have two points. First, I have listened carefully to the noble and learned Lord, Lord Hope of Craighead, who, as an extremely eminent lawyer, I have to be respectful of. However, I hope he will forgive me if I have the impression that these amendments, taken together, collectively have the aim of rendering the Bill if not unworkable then inoperable. They are like a line of barbed-wire fences: each time you get through one barbed-wire fence, there is another set of obstacles or objectives to be fulfilled.

I recognise that a number of Members of your Lordships’ House do not like the Bill and do not think its approach is appropriate in any way. I think they are wrong, but obviously I respect that view. Why then are greater efforts not being made to kill the Bill? Because they know such an effort would fail. I do not want to get in the middle of the spat between the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Coaker, but such efforts would fail because His Majesty’s loyal Opposition would not support such a move. To wound is fine, but to kill would not be acceptable.

Why, in turn, is that? Because away from the Westminster bubble an overwhelming majority of the British people are appalled by the loss of life in the channel and want it stopped—witness the child of 14 drowning last week—are disgusted by the activities of the people smugglers, and are exasperated, furious or both at what are in large measure economic migrants seeking to jump the legitimate queue. The Bill is currently the only game in town, and to do away with it would be immensely unpopular.

Secondly, I disagree with the continued assertion underlying this group of amendments that somehow Rwanda as a country is untrustworthy unless every single “t” is crossed and every “i” is dotted. In this connection, noble Lords might like to read paragraphs 54 and 57 of the Government’s report on Rwanda dated 12 December 2023. The Ibrahim Index of African Governance, an independent organisation, rates Rwanda 12th out of 54 African countries. The World Economic Forum Global Gender Gap Report makes Rwanda 12th—the UK, by the way, is 19th. The World Bank scored Rwanda at 16 out of a maximum score of 18 on the quality of its judicial processes. Lastly, the World Justice Project index on the rule of law ranked Rwanda first out of 34 sub-Saharan African countries. Those are points that tend to get overlooked in the debate that we are having, which tends to focus on our domestic arrangements.

That takes me to my conclusion. The concept of the rule of law has featured prominently in our debate on the Bill and no doubt will do so in future. I am not a lawyer, as many Members of the House know, but nevertheless I strongly support the concept as an essential part of the freedoms that we take for granted. As I have said in the past, the rule of law depends on the informed consent of the British people. Without that informed consent, the concept of the rule of law becomes devalued. So if the House divides at the end of this debate, I respectfully say to Members that we need to be careful not to conflate the fundamental importance of the rule of law with what I fear I see in these amendments, which is largely a measure of shadow-boxing.

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[Lord Sharpe of Epsom (Con)]

My Lords, as has already been discussed, the lower house of the Rwandan Parliament passed its treaty ratification only earlier this week. As I have just tried to explain, implementation continues at pace. I do not yet have the very specific information the noble Lord requires, but, as I have also explained, we will not implement until all the treaty obligations are met.

I therefore respectfully ask the noble and learned Lord to not press his amendment, but, were he to do so, I would have no hesitation in inviting the House to reject it.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have taken part in the debate. I do not want to take up time by going over the issues all over again, but I want to pick up two points made by the noble Lord, Lord Hodgson of Astley Abbotts.

First, I think the noble Lord suggested that my amendments were treating Rwanda as a country that is untrustworthy; I absolutely refute that. When I introduced the amendments in Committee, I made it absolutely clear that I do not, for a moment, question the good faith of Rwanda, and I remain in that position. I absolutely understand that both parties to the treaty are treating each other on that basis. I am certainly not, in any way, questioning the good faith or commitment of Rwanda to give effect to the treaty; what I am talking about is implementation.

Secondly, I think the noble Lord said that my amendment would make the Bill unworkable. I simply do not understand that. I cannot understand why relying on the word of the monitoring committee in any way undermines the effectiveness or purpose of the Bill. For those reasons, I wish to test the opinion of the House.

[The Deputy Speaker (Lord Geddes) (Con)]

I must advise the House that, if Amendment 4 is agreed to, I cannot call Amendment 5, due to pre-emption.

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Moved by

[Lord Hope of Craighead]

7: Clause 1, page 2, line 31, at the end insert—
“(7) The Rwanda Treaty will have been fully implemented for the purposes of this Act when the Secretary of State has obtained and laid before Parliament a statement from the independent Monitoring Committee formed under Article 15 that the objectives referred to in Article 2 of the Treaty have been secured by the creation of the mechanisms listed in that Article.(8) The Secretary of State must consult the Monitoring Committee every three months during the period that the Treaty remains in force, and must make a statement to Parliament at the earliest opportunity in the event that the advice of the Monitoring Committee is that the provisions of the Treaty are not being adhered to in practice.(9) If the advice of the Monitoring Committee is as referred to in subsection (8), the Rwanda Treaty shall cease to be treated as fully implemented for the purposes of this Act unless and until the Secretary of State has obtained from the Monitoring Committee, and laid before Parliament, subsequent advice that the provisions of the Treaty are being adhered to in practice.”Member's explanatory statement
This amendment seeks to provide a means by which it can be determined for the purposes of this Act that the Rwanda Treaty has been, and continues to be, fully implemented.

[Lord Hope of Craighead (CB)]

My Lords, I wish to test the opinion of the House on this amendment.

Investigatory Powers (Amendment) Bill [HL]

Lord Hope of Craighead Excerpts

Report stage
Tuesday 23rd January 2024 Lords Chamber

[Lord Fox (LD)]

My Lords, at Second Reading I raised the issue of the Prime Minister in a slightly different context, but it has taken the legal brains of the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, to put it into a frame. I am happy to have co-signed that, and happy to find myself back on the same side as them on this argument.

It is clear that we will not resolve this here today, but it is perhaps something that we will take to the gap between here and the Commons to try to resolve. I rely on the wisdom of noble Lords who have spoken to take this forward.

On the other point, I support the amendments of the noble Lord, Lord West, and I hope that the Government will find his persuasion conducive.

[Lord Hope of Craighead (CB)]

My Lords, I spoke in Committee about the difference between “unavailable” and “unable”. I am greatly encouraged by Amendments 39 and 43 proposed by the noble Lord, Lord West. The one point of difference between us is that he narrows the meaning of “inability”, for reasons he has explained. If it came to a vote, I think I would support his amendments—but, like the noble Lord, Lord Anderson, I think that further thought needs to be given to whether that narrowing of “inability” or “unable” is really appropriate, considering the effect that it has, particularly in situations of conflicts of interest.

[Lord Coaker (Lab)]

My Lords, I do not have much to add to the debate. From these Benches, we fully support the amendments proposed by the noble Lord, Lord West, and the excellent way in which he presented them. They have the support of the whole ISC, which in this respect has done a great service to us all in taking forward the discussion. These amendments certainly improve the Bill.

The point that the noble Lord, Lord West, made is exceptionally important—the fact that this has to be in the Bill, and that we need it to guide us in how we take this forward. For those who read our proceedings, it is important to repeat that what we are discussing here is the interception of communications of parliamentarians, and the fact that the triple lock was introduced to give additional protection to that. The role of the Prime Minister becomes crucial in that, for obvious reasons.

I join others in thanking the noble Lord, Lord Anderson, for the way in which he has presented his arguments, and the discussions and debates that have gone on in this Chamber and outside it. He has done a great service to all of us by tabling what seems on the face of it a simple amendment—simply changing one word, from “unavailable” to “unable”—but is actually of huge significance. We have concerns about it, which we have expressed in this Chamber and elsewhere— indeed, the noble Lord, Lord West, explained them. Notwithstanding the remarks of the noble Lord, Lord Carlile, and others, we are worried about where it takes us with respect to conflicts of interest, and who decides that there is a conflict of interest for the Prime Minister in circumstances in which the Prime Minister themself does not recognise that there is a conflict of interest. I agree with the noble Lord, Lord Anderson, and others, that there may be a need for this discussion to continue—but who decides whether the Prime Minister has a conflict of interest, if the Prime Minister themself does not recognise that, is an important discussion to have. In the end, the system rests on the integrity of the Prime Minister.

The way in which the ISC has tried to bring forward some conditions to what “unavailable” means is extremely important, and we support that, as indeed we support the amendments that try to ensure that those who take decisions are those various Secretaries of State who may be designated under the Bill to take decisions, should the Prime Minister be unavailable. It is extremely important for those Secretaries of State to have experience of the use of those warrants. Again, the amendments proposed by the noble Lord, Lord West, deal with that, and we are very happy to support them.

Investigatory Powers (Amendment) Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 13th December 2023 Lords Chamber

Amendments 51 and 52 are consequential on the decisions on those two, so I shall say no more on those. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I wish to speak to Amendments 44 and 51A, which are in the name of the noble Lord, Lord Anderson, and to which the noble Lord, Lord Fox, and I have added our names. They very neatly follow on from Amendment 43, which has just been moved by the noble Lord, Lord West of Spithead, and are based on a recommendation in the report by the noble Lord, Lord Anderson, in which he says at paragraph 8.20:

“I recommend the use of a deputy to be permitted for the purposes of the triple lock when the Prime Minister is unable”—


I stress the word “unable”—

“to approve a warrant to the required timescale (in particular through incapacity, conflict of interest or inability to communicate securely)”.

These amendments are prompted by the fact that, instead of the word “unable”, which was that chosen by the noble Lord, Lord Anderson, for the recommendation in his report, and which is also used in Amendment 43, the word that appears in Clause 21 for condition A in the new subsection (3) of Section 26 is “unavailable”. The same point arises with the wording of the triple lock in relation to equipment interference which Clause 22 seeks to introduce, under Section 111 of the 2016 Act. The word “unavailable” would be replaced with the word “unable” in both places by the amendments from the noble Lord, Lord Anderson.

This is all about the meaning of words. The aim must surely be to find the right word to use for describing the situation in which the Prime Minister’s function of giving the necessary approval must be passed to another individual, other than the Secretary of State who has applied for the warrant. This is, of course, a very sensitive matter, and that in itself indicates the importance of choosing the right word.

The question is whether the phrase

“unavailable to decide whether to give approval”

covers all possible situations. The word “unable” includes “unavailable”, but “unavailable” does not always mean the same as “unable”. The word “unavailable” sets too low a bar. The Prime Minister could be unavailable simply because he or she is doing something else—whatever it might be—that is occupying their mind or demanding their attention elsewhere.

On 11 December 2023, the Minister sent a letter to the noble Baroness, Lady Drake, in response to points raised on this Bill by the Constitution Committee, which gave examples of prime ministerial unavailability. Attached to that letter was a commentary on the proposed amendments to Sections 26 and 111, in which the point is made that the word “unavailable” should be understood to mean situations—of which two examples are given— in which the Prime Minister is “genuinely unavailable” to consider the application. The introduction of the word “genuinely” demonstrates the problem with the word “unavailable” on its own, to which the noble Lord, Lord Anderson, draws attention: it needs to be narrowed down and clarified. That is what the word “genuinely” does, but it is not in the Bill.

It is worth noting that, in each of the two examples given in the commentary, “unable” is used to describe situations Prime Ministers may find themselves in which they cannot perform the function to which the statute refers:

“5.1 The Prime Minister is overseas in a location where they are unable to receive the warrant application due to the security requirements and classification of the documents.


5.2. The Prime Minister is medically incapacitated and therefore unable to consider the warrant.”


The fact that “unable” is used here suggests that the word the noble Lord, Lord Anderson, used in his report really is the right one for the situations referred to in these two sections.

There is a further point that the noble Lord, Lord Anderson, would make: “unavailable” does not cover the situation in which there may be a conflict of interest. This surely is a reason why a Prime Minister, although available, should not exercise the power. Here especially, the greater clarity that the word “unable” brings to the situation really is needed.

I know that the Minister has discussed this issue of the wording with the noble Lord, Lord Anderson, perhaps several times and will, no doubt, refer to the position he and his Bill team have adopted so far during these discussions when he replies. But I hope he will feel able, especially in view of the points I have made about the commentary attached to his letter of 11 December, to agree to another meeting with the noble Lord, and possibly myself, before the Bill reaches Report. I hope that, when he comes to reply, he will be able to respond to that request.

[Lord Coaker (Lab)]

My Lords, I am pleased to follow my noble friend Lord West and, indeed, the noble and learned Lord, Lord Hope. They have raised some important questions for the Committee to consider and for the Minister to respond to.

It may be helpful to remind the Committee and others present that Clauses 21 and 22 amend the section of the IPA that deals with targeted interception and examination warrants regarding Members of both Houses of Parliament and the devolved legislatures. These are clearly very important pieces of legislation. The safeguard on such warrants is referred to as the triple lock. As with other warrants in the IPA, the Secretary of State and the judicial commissioner must approve the warrant. But with respect to this issue, the Prime Minister must also approve warrants for the communications of Members of UK Parliaments, hence the difficulty that my noble friend, the noble and learned Lord and others have referred to. What happens with the triple lock if the Prime Minister is not available to authorise that warrant with respect to the communications of parliamentarians, not only in Westminster but the devolved legislatures?

One can see the seriousness of this problem. The Government have rightly felt it necessary to bring this measure forward, given the unfortunate situation when the Prime Minister was dangerously ill in hospital with Covid; thankfully, he recovered. This is clearly a very important issue which we need to consider.

My noble friend Lord West outlined an issue, as did the noble and learned Lord, Lord Hope, that I will speak briefly to. I say respectfully to all noble Lords that the points the noble and learned Lord made are not dancing on the head of a pin: they are very real questions for the Minister about the difference between “unavailable” and “unable” and what that means. The Government need to clarify that for us. My noble friend Lord West’s amendment and my Amendment 47, on which Amendment 45 is consequential, question the wide scope the Government have within the legislation, whereby it almost seems as if any Secretary of State will be able to deputise for the Prime Minister. My noble friend Lord Murphy made the point at Second Reading, which my noble friend Lord West has just made again, that it would surely be better if that scope were narrowed to Secretaries of State with experience of dealing with warrants. My and my noble friend Lord West’s amendments seek to narrow that scope to Secretaries of State who have that experience.

I take the point of my noble friend Lord West. His amendment as it stands is probing. Maybe drafting improvements could be made. The thrust of what he and others said, however, is that we need to do something to deal with the issue.

I have just a couple of questions before I move on to Amendment 55A. Who decides whether the Prime Minister is available or unavailable, or if indeed we have the Bill amended? Who decides that the Prime Minister is unable to take the decision for that triple lock? What is the process by which the decision is made that this is the case?

On Amendment 45, it is unclear to me who the senior officials are that could also make the decision. We have other Secretaries of State who could take the decision if the Prime Minister is “unavailable” or “unable”—if an amendment is passed—to take the decision. Then we have senior officials who might be allowed to take this decision. It is not dancing on the head of pin to ask “What does a “senior official” mean?” and “Who are the officials?”, hence my probing Amendment 45 on who they are and in what circumstances they could take these permissions.

In preparing for Committee, I asked about what sorts of situations might arise. Of course we can think of different situations, and the Government, in the code of practice that they publish, outline a couple of scenarios that may require urgent warrants and the Prime Minister to be involved and so on. In 2011, the noble Lord, Lord Hennessy, apparently did a helpful piece of work on Prime Ministerial powers. He talked of what happens if the Prime Minister is unable to take a decision with respect to shooting down a hijacked aircraft or an unidentified civil aircraft. What happens in those circumstances? Is that the sort of circumstance that the Bill seeks to deal with as well? What we are discussing is obviously also really important because this may involve the authorisation of the use of nuclear weapons. The Minister will be limited in what he can say about that.

I do not want to create a TV drama-type situation, but these are really important questions and the Government are right to address the situation of a Prime Minister being unavailable or unable to take these decisions in some of these circumstances. Again, this gives us the opportunity to think about what areas of national security the Bill would cover.

As is said in the explanatory statement, Amendment 55A

“is designed to probe the extent to which powers in the Investigatory Powers Act 2016 have been used in relation to Members of Parliament”.

As I have mentioned, I was particularly disturbed that, under Section 230 of the Investigatory Powers Act, the Prime Minister can deal directly with the Investigatory Powers Commissioner to keep under review the discharge of the functions of the Armed Forces with regard to intelligence activities. Can the Minister say what the role of Defence Intelligence is in all this? The reason that I raise the matter in this debate on parliamentary communications is due to the report in the Mail on Sunday on 25 November, which spoke of Defence Intelligence being involved in in the Government’s response to Covid. It was involved in looking at communications—and, according to the report in the Mail on Sunday, some of the communications involved parliamentarians.

Investigatory Powers (Amendment) Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, if I suddenly fall over, it is not excitement over my amendments but that I have a brand new starboard knee, which is still slightly wobbly, so I might look a little wobbly at times.

Noble Lords will recall that the Investigatory Powers Act was introduced as a result of the Intelligence and Security Committee of Parliament’s 2015 report, Privacy and Security, which recommended that a new Act of Parliament be created to

“clearly set out the intrusive powers available to the Agencies, the purposes for which they may use them, and the authorisation required”.

However, as the noble Lord, Lord Anderson, recognised in his recent report, which he referred to, there have been a number of changes since the Act was introduced. We now face a very different threat picture from that which we did in 2016, with an increased threat from state actors such as China, Russia and Iran, and a significant rise in internet-enabled crime, including ransomware and child exploitation. The pace of technological change has been incredible. Developments in the fields of data generation, cloud services, end-to-end encryption, artificial intelligence and machine learning have all created challenges, as well as opportunities, for law enforcement and the intelligence community.

The Intelligence and Security Committee, of which I am a member, therefore welcomes the introduction of this Bill. The ISC has considered classified evidence relating to the Bill and questioned all parts of the intelligence community and Ministers on the need for change. However, as ever, the devil is in the detail. The committee considers that there are several areas in which the Bill must be improved and, in particular, safeguards strengthened.

Parliament must ensure that the balance between privacy and security is appropriate, and that there is sufficient independent oversight of the work of the intelligence community, given the potential intrusiveness of its powers. The Bill seeks an expansion in the investigatory powers available to the intelligence services. While this expansion is warranted, any increase in investigatory powers must be accompanied by a concomitant increase in oversight. I have previously spoken about the refusal of the Government to update the remit of the ISC, or to provide the necessary resources for its functioning, such that it has

“oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future”,—[Official Report, Commons, Justice and Security Bill Committee, 31/1/13; col. 98.]

as was the commitment given by the then Security Minister in the other place during the passage of the Justice and Security Act.

The House has made known its views on this long-standing failure during debates on several recent national security Bills, including the National Security and Investment Act, the Telecommunications (Security) Act and the National Security Act. However, despite repeated attempts by this House to ensure effective oversight, this has been ignored by the Government. The Government cannot continually expand and reinforce the powers and responsibilities of national security teams across departments and not expand and reinforce parliamentary oversight of those teams as well. The committee expects the Government to take this opportunity to bolster the effective oversight they say they value. If they do not, then they should expect that Parliament will. I therefore call upon the Government once more to update the ISC’s memorandum of understanding to ensure sufficient oversight of all intelligence and security activities across government. Indeed, this was the quid pro quo that Parliament expected during the passage of the Justice and Security Act 2013, and I trust that Parliament will take the same view now.

I turn to Amendment 10, which is designed to close a gap in oversight. Proposed new Section 226DA requires that each intelligence service provide an annual report to the Secretary of State detailing the individual bulk personal datasets that they retained and examined under either a “category authorisation” or an “individual authorisation” during the period in question. My amendment would ensure that there is independent oversight of this information, rather than just political oversight. The amendment would provide that the annual report be sent also to the Intelligence and Security Committee of Parliament and the Investigatory Powers Commissioner. IPCO has a degree of oversight included in the Bill already, since judicial commissioners approve both individual and category authorisations at the point of issue and approve the renewal of any authorisations after 12 months. This is not full oversight. Further, there is currently no democratic oversight at all of category authorisation, which is not appropriate. My amendment would ensure that IPCO and the ISC have oversight of the overall operation of this new regime.

Noble Lords will note that I have also tabled an amendment to notify IPCO of any new individual datasets that are added to category authorisations by the intelligence services. That amendment would work alongside this, and the ISC considers that the combination would provide an appropriate balance of real-time and retrospective oversight for these new powers. It is vital that the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation are not watered down by the changes under this new Bill. Instead, they must be enhanced in line with the increasing investigatory powers. This is what the ISC seeks to achieve by the amendments I have tabled today.

Amendment 12 is consequential on the amendments that I have just talked about.

I speak now to Amendment 13. Part 7A of the Bill provides for a lighter-touch regulatory regime for the retention and examination of bulk personal datasets by the intelligence services where the subject of the data is deemed to have a low or no reasonable expectation of privacy. Approval to use such a dataset may either be sought under a category authorisation—which encompasses a number of individual datasets that have similar content or may be used for a similar purpose—or by an individual authorisation, where the authorisation covers a single dataset that does not fall neatly within a category authorisation or is subject to other complicating factors. In the case of a category authorisation, a judicial commissioner will approve the overall description of any category authorisation before it can be used. A judicial commissioner will also approve any renewal of a category authorisation after 12 months and the relevant Secretary of State will receive a retrospective annual report on the use of all category and individual authorisations.

This oversight is all retrospective. What is currently missing from the regime is any form of real-time oversight. Under the current regime, once a category authorisation has been approved, the intelligence services then have the ability to add any individual datasets to that authorisation through internal processes alone, without any political or judicial oversight. This would mean relying on the intelligence service to spot and rectify any mission creep, whereby datasets might be added to a category authorisation in a way that was not consistent with the definition of the original authorisation, which lasts up until the 12-month marker for renewals.

While we have every faith in the good intentions of the intelligence services—and I do not mean that in a joking way, because we have been amazingly impressed by them—no legislation should be dependent on the good will of its subjects to prevent misuse of the powers granted therein, particularly where those powers concern national security. The ISC therefore seeks to fill that very worrying gap.

My amendment proposes a new section in Clause 2—proposed new Section 226DAA—which would ensure that the IPCO was notified whenever a new individual bulk personal dataset was added by the agencies to an existing category authorisation. Notification would simply involve the agencies sending to the Investigatory Powers Commissioner the name and description of the specific bulk personal dataset as soon as reasonably practicable after the dataset was approved internally for retention and examination by the intelligence services.

The amendment would require not that the use of the dataset be approved by the IPCO but merely that the commissioner be notified that it had been included under the authorisation. It therefore does not create extra bureaucracy or process. Indeed, it provides for a flow of real-time information between the intelligence services and IPCO, to allow for the identification of any concerning activity or trends in advance of the 12-month renewal period. Any such activity could then be investigated by the commissioner as part of its usual inspections. The ISC believes that this amendment strikes the right balance between protecting the operational agility of the intelligence services and safeguarding personal data at any level of sensitivity.

Noble Lords have already considered my related amendment, to provide the annual report to the IPCO and the ISC, as well as to the Secretary of State. The committee believes that this combination of real-time oversight through the notification stipulated in this amendment and retrospective oversight, through the involvement of judicial and political oversight bodies, is necessary to provide Parliament and the public with the reassurance that data is being stored and examined in an appropriate manner by the intelligence services.

I repeat my entreaty to the House: the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation must not be watered down by the changes under this new Bill; they must be enhanced in line with the increasing investigatory powers.

[Lord Hope of Craighead (CB)]

My Lords, I have added my name to Amendments 3 and 15 in the name of the noble Lord, Lord Anderson. I have nothing to add to what he said in support of Amendment 15, but I shall add a word about Amendment 3, which was the subject of the Christmas present of the noble Lord, Lord Anderson. It requires one to look a little more carefully at proposed new Section 226A(2), which provides as follows:

“In considering whether this section applies to a bulk personal dataset, regard must be had to all the circumstances, including in particular the factors in subsection (3)”.


What the noble Lord, Lord Anderson, is seeking to offer the Minister the invitation to include is the use to which the datasets are to be put. He draws strength for that proposition from what one finds in new Section 226BA(3), in which express reference is made to the use to which the datasets will be put. It can be said in support of this proposal that it seems a little strange not to include the use to which the datasets are to be put, if they are mentioned expressly in new Section 226BA(3). I suppose that one could say that, since new Section 226A(2) is very widely phrased and includes all the circumstances, that the Christmas present of noble Lord, Lord Anderson, is already there as already there as one of the circumstances, but it is probably happier to include it expressly, just for the avoidance of doubt. It is for the avoidance of doubt that the strength can be found in the proposal that he has put forward.

Illegal Migration Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not know whether I should declare an interest as a pseudo-lawyer, or perhaps as Mickey Mouse. I am not entirely convinced that framing the debate in that way is appropriate.

I have a number of things to say. First, the fact that Motion A1, in the name of the noble Baroness, Lady Chakrabarti, has been rephrased as it has been, shows that those of us who argued that the previous version was substantive, and not interpretative, were right. However, the Motion as redrafted is also improper because it does two things—here I again respectfully part company with the noble and learned Lord, Lord Etherton. He read the Motion but omitted words in its second line. Let us have a look at what it actually says:

“In interpreting this Act, regard shall be given to the intention that its provisions”—


that refers to the provisions in the Bill—

“and any act and omissions made as a result, are intended to comply”.

Even now, it is not properly an interpretative provision, because it does not just apply to interpreting the words; it is also said to apply to any acts and omissions made under the Act, as it will become. That still has substantive consequences, and the effect is still—this time in an evening rather than in an afternoon—that we are effectively incorporating these treaties into our domestic law.

That is why the words

“and any acts and omissions made as a result”

are still objectionable, but the rest of it, while maybe not objectionable, is unnecessary. As I mentioned on Report, the law of this country has always been that, in the absence of express words to the contrary, all statutes are presumed to be in accordance with our international obligations. That was most recently set out by Lord Dyson, speaking for the Supreme Court in the Assange case, when he said that

“there is no doubt that there is a ‘strong presumption’ in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations”.

The fact that we now have to go through the contortions of trying to fit this reformulated amendment into interpretation when it still has substantive consequences shows that this is a road down which we should not be going at all. In so far as the intention is that legislation should be interpreted in line with our international commitments, that is already part of the law. In so far as it says that

“any acts and omissions made as a result”

of this Bill are to be so interpreted, that has substantive consequences.

I respectfully suggest that those points are not those of a pseudo-lawyer, nor are they Mickey Mouse points. If I may finish where I began, it is somewhat unfortunate that that is how they are being described.

[Lord Hope of Craighead (CB)]

My Lords, I have the misfortune to disagree with the noble Lord, Lord Wolfson. I support entirely what the noble and learned Lord, Lord Etherton, said. The key words in this reformulated amendment are “In interpreting this Act” and “regard”. It would not write these conventions into our law, as the previous amendment was in danger of doing. This a pure interpretation provision, and it is entirely consistent with the way the courts approach these various conventions. The assumption is that the United Kingdom, having signed up to the conventions, will respect them in the formulation of its provisions in our domestic law. The court applies that principle in finding a meaning of the words before it in statutory instruments and in primary legislation. This is entirely in accordance with the way the courts approach the matter. The key words are, “In interpreting this Act”, and “regard”. It is not binding; it is just that regard will be had. That is the way the provision should read. I support the amendment because it is entirely orthodox and consistent with principle.

[Lord Coaker (Lab)]

My Lords, I support my noble friend Lady Chakrabarti’s Motion A1 and the various provisions that follow from it. Without getting into the legal arguments that have just been articulated by the noble and learned Lords, Lord Hope and Lord Etherton, I support the fact that the key words are the first few words, in particular to try to deal with the criticism that was made of the previous amendment.

The only point I would add is that it is important for us to have something like this in the Bill given the criticism, concern and questions that have been raised about the Bill by many well-respected international organisations, bodies and individuals. We all expect something to be done about the challenge that we face, but we want it done in a way which enhances our international reputation and conforms to the various international treaties and our responsibilities. That is why Motion A1 is particularly important and should be supported.

Illegal Migration Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[The Lord Bishop of Durham]

I was about to sit down, but I will note that. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I have two amendments in this group, which very much follow the points raised by the right reverend Prelate.

As the noble Viscount, Lord Hailsham, has been pointing out, there is a problem about Clause 56(5), to which the right reverend Prelate’s amendment draws attention. As it stands, the subsection restricts the grounds of review to errors of law only. My Amendment 158A seeks to open up the scope for review, following up on a recommendation from the Constitution Committee which pointed out, as the right reverend Prelate has, that the opportunities for error on grounds of fact in this situation are very many. Indeed, the information on which the committee was proceeding was that usually it is on errors of fact that these decisions go wrong.

Amendment 158A rewrites subsection (5) to say that review is available when the decision was either

“wrong in law, or … proceeded on information about the person’s age which was incomplete, misleading or otherwise so seriously misinformed that no reasonable decision-maker would have relied on it”.

I think that the right reverend Prelate would welcome my amendment because it is trying to achieve what he is achieving. Like the noble Viscount, Lord Hailsham, I am worried that, if subsection (5) remains as it is, it will greatly restrict the opportunity for review on grounds of errors of fact.

Although I do not propose to put my amendment to a vote, can the Minister consider very carefully whether the grounds for review that I am suggesting are available? They come very close to what lawyers describe as “Wednesbury unreasonableness”. I do not know whether the Minister would accept that what I have in my formulation would be available as a ground of review that the decision was wrong in law anyway because it was so defective, but it is a very important qualification on the absolute precision which subsection (5), as it presently stands, lays down. Without elaborating further, I seek the Minister’s view on what I am proposing. It is important to know exactly to where the phrase “wrong in law” extends.

My Amendment 168AA, which was also discussed in Committee that evening at 1.30 am, is a quite different one, again promoted by a recommendation of the Constitution Committee. It seeks to ask that the power to make regulations under Clause 57(1) regarding the effect of a person’s decision

“not to consent to the use of a specified … method for the purposes of an age assessment … where there are no reasonable grounds”

for doing so should be moved from the position where it is subject to the negative procedure, so that it is subject to the affirmative procedure.

The regulation power in Clause 57(1) does not take the blunt approach of saying that, if somebody refuses to consent, then he should simply be treated as being over the age of 18. Commendably, the clause is phrased as having regard to the circumstances. One can well understand that there could be a variety of circumstances in which a person withholds consent. The problem with leaving the provision as it stands to the negative procedure is that there is no opportunity for considering whether the circumstances are ones that we would wish to accept. Amendment 168AA seeks to add the regulation-making power under Clause 57(1) to the list in Clause 64(4) of those regulations which are to be laid in draft and approved by resolution of each House.

Given the wide scope of the power in Clause 57(1) and its importance to the individual, I suggest that this is a reasonable amendment to make. Although it was not possible for the matter to be debated very fully in Committee at 1.30 am, I hope that the Minister can enlarge on his reply. He replied very briefly then. Before another noble Lord intervened to attract his attention elsewhere, he said that he had noted my amendment and that the Government would “respond before Report stage”. I have had no response so far. Can the Minister consider more carefully my proposal?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

As my noble friend well knows, under a conventional judicial review challenge, the court will review the process of the decision and whether the decisions made were appropriate, applying the conventional judicial review tests, not balancing the evidence and coming to its own conclusion on the facts. The Government’s position is that it is appropriate for those tasked with assessing a person’s age to be entrusted with that responsibility, subject to review on judicial review principles. As the noble and learned Lord, Lord Hope, said, this includes a test of Wednesbury unreasonableness—a decision so unreasonable that no properly directed tribunal could have reached it.

[Lord Hope of Craighead (CB)]

I want to be absolutely clear: is the Minister accepting my amendment? I have drafted it as carefully as I can to bring it within the scope of that kind of challenge.

[Lord Murray of Blidworth (Con)]

I am coming to the noble and learned Lord’s amendment and will answer that question in a second.

We consider that these provisions are entirely necessary to safeguard genuine children and guard against those who seek to game the system by purporting to be adults. It follows that I am afraid I cannot support Amendments 156A and 158A. However, I assure my noble friend Lord Hailsham that age assessments will, as now, be undertaken in a careful and professional manner. This is not a perfunctory exercise, and it is in everyone’s interests that we get it right.

--- Later in debate ---

Moved by

[Lord Hope of Craighead]

158A: Clause 56, page 58, line 37, leave out from “tribunal” to the end of line 3 on page 59 and insert “may grant relief only on the basis that the decision—
(a) was wrong in law, or(b) proceeded on information about the person’s age which was incomplete, misleading or otherwise so seriously misinformed that no reasonable decision-maker would have relied on it.”

[Lord Hope of Craighead (CB)]

My Lords, as the noble Lord, Lord German, said, my amendment is really part of a package, and it is very important that the formula which I have set out in it should be put on the face of the Bill. For that reason, I wish to test the opinion of the House.

Illegal Migration Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord Etherton (CB)]

My Lords, this amendment relates to serious harm suspensive claims, and it is important because the Government intend that suspensive claims are the only way that removal notices can be challenged. The point I have been concerned with from the beginning is the position of people who are served with a removal notice in respect of a country in which they have a well-founded fear of persecution if removed there, and they would fall within Article 1A(2) of the refugee convention. In other words, vis-à-vis that country, they would be regarded as refugees. Do they have to show in addition, as required by Clause 38(3),

“a real, imminent and foreseeable risk of serious and”—

this is the critical word—“irreversible harm” to succeed on a serious harm suspensive claim? That would be not only novel but against all principle, and the meaning, intent and wording of the refugee convention.

The point has been illustrated—I have tried to illustrate it, and the Government have taken it up—in the particular case of LGBTQ+ claimants. The decision in the case of HJ (Iran) and HG (Cameroon) was that, in order to qualify as a refugee under the convention, it is sufficient that, if they would wish to live openly as LGBTQ, they would face persecution, even if they would not suffer such persecution if they acted discreetly. The question was, if they or somebody from that community were served with a removal notice and it were to a place where members of that particular social group, within the meaning of the convention, would have reasonable fear of persecution, would they have to show in addition that they would suffer irreversible harm, and within a specified period? I urge your Lordships to accept that that would be entirely wrong.

Throughout this debate on the Bill, my understanding has been that the Minister has said that, yes, such a group would have to show in addition that they would suffer irreversible harm. That seems inconsistent with Clause 38(4)(b), which states:

“The following are examples of harm that constitute serious and irreversible harm for the purposes of this Act … (b) persecution falling within … Article 1(A)(2) of the Refugee Convention … where P”—


the refugee—

“is not able to avail themselves of protection from that persecution”.

My heart therefore leapt with joy last Wednesday when I heard the noble and learned Lord, Lord Stewart of Dirleton, who stood in as Minister, say:

“The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim.”—[Official Report, 28/6/23; col. 767.]


However, I received a letter sent at 2pm this afternoon from the Minister which seemed to indicate that he was still insisting that, in addition, one would have to show irreversible harm. All I wish to receive from the Minister to avoid a vote on this is an assurance that, where it is clear that there would be persecution of a recognised category within the convention regarding the country specified in the removal notice, that fact alone is sufficient to satisfy the requirements for a serious harm suspensive claim, and that the principle laid down in HJ (Iran) regarding LGBTQ people will continue to apply.

[Lord Hope of Craighead (CB)]

I will speak first to Amendment 131, which would survive even if the amendment to which my noble and learned friend Lord Etherton has spoken were carried and Clause 38 rewritten.

I am seeking to make a very simple point: the power in Clause 39 to

“by regulations amend section 38 to make provision about the meaning of ‘serious and irreversible harm’ for the purposes of this Act”

is unqualified and wide enough to enable the Secretary of State to remove some of the instances of serious harm set out in Clause 38 as it is or as it may be amended. The examples of serious harm given there are absolutely obvious, and they are indeed very serious. It would be a great misfortune if, by some misadventure, the Secretary of State were to remove one or other example from that list for some reason. I would have thought that the Minister could accept the amendment as a sensible qualification of the otherwise unqualified power in Clause 39. I am simply repeating a point I made in Committee, but it is rather important to have clarity on this. The Minister can give an assurance—no doubt he will—that there is no intention to remove examples from Clause 38, but that is not really good enough. It needs to be set out in terms in Clause 39.

Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Lord Hope of Craighead Excerpts

Tuesday 13th June 2023 Lords Chamber

[Lord Coaker (Lab)]

My noble friend predicts what I was going to say next, in a calm, reasonable, rational way. I was going to ask whether the Minister could confirm whether the other place considered these changes to the Explanatory Memorandum before it had the opportunity to consider the regulations. As a football fan, I say that if this was a football crowd, it would be chanting to the Government, “They don’t know what they’re doing”. It would be quite right.

At heart, what do we believe? I will tell noble Lords what I think, and what I think the SLSC and many noble Lords said. What has taken place is an absolute, fundamental constitutional outrage. This House defeated these, or similar, proposals, brought forward in a panic, as I said, by the noble Lord, Lord Sharpe, without knowing really that he was going to have to do it, earlier this year. Primary legislation was defeated. So what do the Government do? They do not bring forward new primary legislation. They try to sneak through secondary legislation in an underhand way without proper public consultation.

As the Secondary Legislation Scrutiny Committee said:

“We are not aware of any examples of this approach being taken in the past”.


Is this what it has come to? Our Government have, in a shocking betrayal of our unwritten constitution, undermined the conventions on which our way of doing things is based, and on which our Parliament is based. How many times have I stood here and spoken of the need to protect conventions, to recognise the right way of doing things? These conventions protect our democracy, our rights and our freedoms. They are not just something for the Government of the day to dismiss because they are inconvenient. That undermines the workings of our parliamentary democracy. As such, it is shocking.

Of course, the elected Government should have their way, but this was not passed by the other House before being defeated. The Minister says, in a piece of political theatre, “Oh, don’t worry, we passed it yesterday in the House of Commons”. Embarrassed and in a panic in the face of today’s criticism, this was so the Government could say: “Don’t worry about that. We’ll be able to tell Coaker and everybody else who has mentioned it that we passed it yesterday through secondary legislation. That completely torpedoes their argument that the House of Commons hasn’t discussed it”. Such was the rush that they could not even ensure that an amended Explanatory Memorandum was put before the other place before it decided on the legislation.

Like many noble Lords, I have been in this Parliament for a number of years, and I have never seen anything like this. Nothing changes. The fundamental principle is that this Government are using secondary legislation to overcome primary legislation; hence my regret amendment deploring it and calling on the Government to think again. We will abstain, as I say, on the fatal amendment. We will not block this legislation.

Let me be clear to those who keep asking me whether His Majesty’s Opposition’s position is to block the SI: we will not do that. I understand why some people would wish that to be otherwise but, as His Majesty’s Opposition, we will respect convention. We will respect tradition and the right way of doing politics in our country. I do not believe that it necessarily shows any respect for the way that democracy works by voting down the opinion of the elected Government of the day.

The way to change that is, in my view, to get rid of this Government at the next election and put another Government in their place. That is the way forward. We have opposed these measures and will continue to argue that they are unnecessary. But we should not, in my view, be debating this among ourselves. The true adversary in all of this is a bankrupt Government turning in on themselves. We will respect the right way of doing things even if the Government do not. If we are to be the next Government, we will expect those who may oppose us then to act in the proper way, respecting the will of the elected House. That is what I am saying to this Government: that they are not respecting the traditions of our country.

This is a sign of His Majesty’s Opposition doing all they can to prepare for government and to look like a Government in waiting. This shoddy piece of constitution-disrespecting legislation, put forward with no consultation, shows just how far this Government have fallen. It is a moral and constitutional outrage, of which the Government should be ashamed. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I feel some sense of responsibility for the situation in which your Lordships find yourselves this evening because I devised the formula quoted in the regulations before us.

I drafted that particular formula with very specific reference to the locking-on and tunnelling offences described in the Public Order Act, which we were considering as a Bill at that time. I confess that I was not looking forward at that time to any other use of that formula. I understand why the Government have found it attractive and the point they are making that it is better to have a uniform test across the board. However, as the noble Lord, Lord Coaker, has said, this is a debate about the right way of doing things.

I have been making strenuous efforts on the REUL Bill to make it clear that parliamentary accountability requires debate in the Chamber on things that we can discuss and amend if necessary, and not be driven by statutory instruments. While I stand by the formula which I devised—I believe it is the right formula, pitched at exactly the right point for the police to decide when they should intervene—I deeply regret that the Government have felt it necessary to approach a situation in this way. I endorse exactly what the noble Lord, Lord Coaker, has been saying and therefore wish to make it clear that while I stand by my formula, I greatly regret the procedure that is being adopted.

[Baroness Jones of Moulsecoomb (GP)]

I actually told the noble and learned Lord, Lord Hope of Craighead, that he should not have helped the Government. I am prepared to forgive him, from a sense of generosity, because I know he was trying to help, but it did not actually help at all. The opening speech by the Minister was quite interesting because it lasted nearly nine minutes and focused almost entirely on what the police and the protesters were going to do. It avoided the talk of the constitutional novelty that the Government have introduced.

For me, this is a make-or-break moment for democracy. It is a crossroads that we really have to face up to because, in spite of what the noble Lord, Lord Coaker, said about respecting conventions, the fact is that the Government have not respected our conventions. There are two issues at stake here. The first is suppression of freedom, with a measure that your Lordships’ House rejected as unreasonable only very recently. In some ways more seriously, and secondly, this government move sets a precedent that the Government can use secondary legislation to overrule Parliament’s will as expressed in votes on primary legislation. This means that any future Minister, at any time, could decide to change any law in any way. This to me is deeply disturbing and we will hear from other people, I hope, who find it disturbing as well.

The shadow Attorney-General has said that we have to stick to the conventions and allow this statutory instrument to pass, but that argument seems to be based on a fundamental misunderstanding of the conventions. By convention, your Lordships’ House does not block primary legislation, but this is not primary legislation. Your Lordships’ House can, does and has blocked statutory instruments. I recognise that there is no convention that the Government cannot use a statutory instrument to overturn parliamentary votes on primary legislation, but that convention does not exist because no Government have ever tried to do this before.

What we face here is a novel issue—a turning point for our parliamentary democracy—and the decision in your Lordships’ House on the following question will establish a new constitutional understanding. The key question is: should the Government be allowed to overturn parliamentary votes on primary legislation by using secondary legislation? That is the question we have to think about here today. We have talked before in your Lordships’ House about our discontent about overreach by secondary legislation. I ask your Lordships: is this not the day to act on this? If we refuse to act today, when are we going to act?

The Labour Party has tabled an amendment to regret, and regret is what I believe we will all experience in the future if we fail to support this fatal amendment today. The whole country will have cause to regret the further erosion of the right to protest, which is part of our basic British way of life, and the enfeebling of this House, which many in this House might regret as well. We will regret it when Ministers start regularly to use their power under secondary legislation to overturn existing laws that Parliament has debated and voted for. We will regret it when we read headlines about the police arresting a group of parents and their children who are protesting about pollution outside their school.

What about the community up in Stone in Staffordshire who, just last week, protested about having HS2’s HGVs rushing past their houses 42 times a day? They protested quite hard; I think they would have fallen foul of this piece of law. Or what about arresting people holding a vigil for a victim of police violence, which has of course happened? We will definitely regret it when we hear about a big march against a government policy, as when a million of us protested about the Iraq war, and the police will then have to say, “Sorry, that protest is banned because it may cause more than minor disruption”. That is a very low bar.