Modern Slavery Bill

Lord Hope of Craighead Excerpts

Wednesday 3rd December 2014 Lords Chamber

[Lord Patel (CB)]

I have added my name to the amendment in the name of the noble Lord, Lord Warner. Powerful arguments have already been presented as to why there is a need to make the role of the commissioner truly independent, and I strongly support that. The noble and learned Baroness, Lady Butler-Sloss, also referred to the evidence and the comments made by the Joint Committee in the scrutiny of the draft Bill. I further add that the role needs to be truly independent. When we come to discuss the functions, as we will on Monday, there will be several amendments, including mine, which we will no doubt debate at length. Those are important amendments. If we put the two groups of amendments together, it will make it even clearer why the role of the commissioner needs to be seen and defined as truly independent.

[Lord Hope of Craighead (CB)]

My Lords, I make a brief comment on this debate from my experience of setting up the Supreme Court. One of the concerns in moving the appellate jurisdiction from this House to the Supreme Court was the risk of its not establishing its independence from the Executive, which was of course never in doubt when the Appellate Committee sat in this House. One of the surprising struggles that we had to have at the beginning of the Supreme Court’s existence was in persuading officials in the Ministry of Justice that they did not really have any say over how the Supreme Court ran its affairs. It took some time to establish that point—and, in particular, that the chief executive, on whom the court depends for so much of its running, was to be answerable to the President of the court and not to the Lord Chancellor. Of course, that battle has been won and is now in the past, and the relationship is perfectly harmonious. But the fact that it took something like two or three years to establish that point was a lesson. It was not spelt out in every detail in the legislation that set up the Supreme Court, which was deliberately simple and easy to understand. I wish to stress that it is vital to get this sorted out at the very beginning, because opportunities for doing so later in legislation do not occur very often. I hope that the Minister will take that point into account as well as the others.

Data Retention and Investigatory Powers Bill

Lord Hope of Craighead Excerpts

Thursday 17th July 2014 Lords Chamber

Moved by

[Lord Hope of Craighead]

2: Clause 1, page 1, line 5, leave out “the requirement is” and insert “for objective reasons the requirement is strictly”

[Lord Hope of Craighead (CB)]

My Lords, this amendment returns to a point that I raised yesterday at Second Reading. As the noble Lord, Lord Phillips, pointed out in moving his amendment, Clause 1(1) is crucial to the whole scheme in the Bill and it is extremely important to get the language of it right. I will not go back over the points that he was making in general support of that proposition, but it is with a view to trying to get the language right that I have raised this issue again.

The Minister will recall that I was drawing attention to the wording of the judgment in the case that has given rise to all these problems, and I will come back to that in a moment. I note that in his reply to my comment, at col. 664 of yesterday’s Hansard, he said:

“The noble and learned Lord, Lord Hope of Craighead, asked why Clause 1(1) does not use the wording of the ECJ judgment. The test in the Bill requires the Secretary of State to consider”—

personally, I would accept that as an appropriate word—

“whether it is necessary to require a provider to retain data, but also whether it is proportionate for that legitimate aim. This is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data”.—[Official Report, 16/7/14; col. 664.]

The point that I raised, and to which I return, is that the wording of the judgment is more precisely targeted. The reasons for it are explained in the judgment in a certain amount of detail because they draw attention to the concern that members of the public would have—possibly more by rumour and suspicion than by reality, but concern nevertheless—that their private lives were the subject of constant surveillance. It is for that reason that the court went on to say that it was necessary for,

“clear and precise rules governing the scope and application of the measure in question”,

to be laid down. That was in paragraph 54.

The criticism of the directive was that the “clear and precise rules” that were required were not apparent in that directive. Paragraph 65 is the crucial one. It says:

“It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions”—

the word “provisions” is important—

“to ensure that it is actually limited to what is strictly necessary”.

My amendment picks up two points: the use of the words “objective reasons”, which are in the judgment; and also the phrase “the requirement is strictly” to be added before the word “necessary”. My concern is that, without words that match the judgment, those who seek to criticise or possibly even attack the measure will compare what is in the legislation with what is in the judgment. Lawyers do that all the time. I know that the future of the European courts is perhaps not entirely secure, but the fact is that for the life of this Bill if it becomes an Act, and up until the closure date, both of the European courts are capable of being appealed to. I am quite sure that the last thing the Minister would want is a challenge to this measure on those grounds in those courts.

My amendment is intended to be helpful. I am not trying to undermine the Bill. I am just trying to suggest that the language of it should be more precisely worded. I do not know where the phrase “necessary and proportionate” comes from. The ECJ judgment says that proportionality is part of necessity, so built into the idea of necessity is proportionality. I do not complain about the fact that they are both there—it is a useful combination of words—but it is the other bits, the strict use of this phrase and the need for objective reasons, that are necessary.

If one thinks through the way in which the exercise will be conducted, I have no doubt that the Secretary of State herself will not be taking all these decisions. This formula would, in fact, be instructing those on whom she relies to apply their minds to the requisite standard, and to provide convincing, objective reasons for the measure that is suggested should be taken.

I am grateful to the noble Lord, Lord Blencathra, for drawing my attention to an examination of the wording in the draft communications data Bill, as it then was, by the Joint Committee on the draft Bill. In paragraphs 62 to 67, there is a discussion about the language. One point that emerges from that discussion, which is very relevant to what I am trying to say, is that the wording is necessary, having regard to the fact that:

“Once a power is on the statute book”—

as this would be—

“it is available to be used, and also to be misused or abused, at any time in the future”.

Undertakings are all very well, as are all the various other protections that the Minister referred to yesterday as part of the United Kingdom’s system; but at the end of the day, it is the wording that directs the nature of the exercise to be carried out by those responsible for doing it that really matters.

That is why, in my experience, these courts are not all that impressed by what we tell them about how our system operates and the number of regulators and investigations that go on to check that everything is being conducted properly. They will look at the language in the statute. That is why it is so important to get the wording right if this measure is to stand up to scrutiny.

It is with that justification that I move this amendment, in the hope that the Minister will give further consideration to it, in the very short time available, to see whether it would not be wise to tighten up the wording. I think that it is in sympathy with what the Minister himself would wish to be done anyway. It is getting the wording on the face of the Act that matters so much. I beg to move.

[Lord Davies of Stamford (Lab)]

My Lords, I rise to support the noble and learned Lord, Lord Hope, in his amendment. Before doing so, I hope that it may be in order to say a word of appreciation to the Minister—on my behalf, but I dare say that I am speaking also on behalf of others who spoke in yesterday’s Second Reading debate—for obviously having worked late through the night with his officials. He produced a letter to my noble friend Lady Smith, a copy of which we all received this morning. I make that point because—given the circumstances of emergency legislation, which always, quite correctly, arouses scepticism, doubt and worry in people’s minds—it is particularly important that the Minister should give very careful answers to the many points raised in yesterday’s debate.

It would be wrong to say that the Minister has answered in this letter every question that was raised in the course of the debate. Indeed, he has not actually answered every question that was raised by the Constitution Committee’s report. For example, the Constitution Committee pointed out that the Joint Committee had said in 2012 that there was some difficulty or doubt about non-British companies being prepared to continue to co-operate, not so much on the retention of data but on the provision of communications content. The Government might have been advised to address that criticism and could simply have said, “Maybe we got it wrong, in retrospect, and should have taken notice of the Joint Committee’s observation back in 2012, rather than ignoring it”. However, that is just one point. I think that the Government have made an exemplary effort in a very short space of time to deal seriously with the matters that were raised in yesterday’s debate. It would be quite wrong for nobody who asked critical questions yesterday to recognise that effort and to thank the Government for it.

--- Later in debate ---

[Lord Taylor of Holbeach]

I am sure the usual channels make arrangements for any such potentiality. I am very grateful to my noble friend Lord Howard of Lympne for the way in which he presented the important point that the British Parliament and British law lie at the bottom of all this. We have had a chance to consider this matter. I do not know whether beliefs have been changed by our consideration of the previous amendment, but at least that consideration has been valuable. However, I still urge the noble and learned Lord to withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to the Minister for his reply and to all those who have taken part in this debate. I wish to make one or two further points. First, the Minister is, of course, right that the judgment was concerned with the directive and not with any UK measure: that is the nature of the jurisdiction it was exercising. However, when lawyers get to work in response to clients’ demands, some of whom have very deep pockets—we are dealing in this field with people who may well be in that category—people start thinking about things and drawing analogies with what is said by courts in analogous situations. That is the significance of the wording of the judgment so far as the wording we have put in the Bill is concerned.

As I think I explained, my intention in bringing this matter before the Committee for discussion is so that we can have a fuller discussion of the detail than we could have had yesterday at Second Reading. There is, of course, a lot of force in what the noble Lord, Lord Howard, says and one does not want to parrot the wording in European judgments just for the sake of it. However, there is the broader point made by the noble Lord, Lord Davies, earlier that there is a reassurance to the public, too, in adopting these words, which were chosen by the European court in order to meet what it saw as a concern about the use of this system. Therefore, I am not disappointed that I brought this matter forward as it requires very careful consideration. I hope that the Minister will think a little more closely about it before we get to Report, although there would obviously be difficulties if I were to bring the matter before the House again. However, for the time being, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

Moved by

[Lord Hope of Craighead]

3: Clause 4, page 6, line 31, after “kingdom” insert “in accordance with the laws of the country where the person is”

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, this is an amendment of a rather different character. It is really a probing amendment and it picks up a point that I also raised at Second Reading yesterday evening. In order to understand the point, one has to know a little more than the wording on the Marshalled List. I draw attention to a provision in the Bill which has to be read together with provisions in RIPA, in particular Section 22. Section 22(6) states:

“It shall be the duty of the … operator to comply with the requirements of any notice given to him under subsection (4)”.

The last but one subsection of that section—subsection (8)—states:

“The duty imposed by subsection (6) shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief”.

However, Clause 4(10) of the Bill seeks to insert in that subsection of RIPA the words,

“including in the case of a person outside the United Kingdom”.

I am not clear whether the enforcement measures which are forecast by the provisions in Section 22 of RIPA are intended to be applied extraterritorially. This is an important point of practice, concerning how one achieves a measure such as an injunction or some other measure by service upon somebody abroad, and then how this is enforced against that person.

I practised for 24 years in the Court of Session, and was its president for the past seven years. I am very well aware of the problems one has in dealing with people outside the jurisdiction. Some of these problems indeed related to people in England, not Scotland, and one had to be extremely careful that measures were in place to enable any order a court pronounced to be enforceable. Underlying this is the point the Minister made yesterday, that because of the challenges which are now being made one wants a system which is properly laid out and is foolproof, which will be effective and will command respect.

My concern is that there may be something lurking here at the very back of Clause 4 which is defective, because it has not been properly explored and thought through. Like the noble Lord, Lord Davies, I was extremely grateful for the letter written by the Minister’s advisers, which covered a lot of ground in great detail. However, on this point there is a reference to my intervention. The very last sentence on the bottom of the third page states:

“Where absolutely necessary, RIPA provides for enforcement by injunction through domestic courts”.

Indeed it does, and domestically there is no problem. The question is whether it is intended that it should be enforceable in courts in other parts of the world, and whether attention has really been given to the mechanisms that would be necessary to achieve that, in discussion with the various courts including the Court of Session. If the noble Lord was able to guide us a little more on that point, that would be extremely useful. It would reassure us that we are passing a measure which will command respect throughout the world, as it is intended to do. I beg to move.

--- Later in debate ---

[Lord Taylor of Holbeach]

I can say to my noble friend Lord Blencathra that although I have not read MLAT, I have been present when its provisions have been discussed. He will be aware that one of the provisions that we are hoping to set up involves appointing a diplomat to look at how we handle these matters. Indeed, our whole approach to this issue is about mutual co-operation. It is not adversarial, although we understand that the law has to assume adversarial premises and the definitions that might apply in such circumstances, but that does not undermine what we are trying to achieve.

I am again grateful to the noble and learned Lord for tabling this amendment. He spoke articulately at Second Reading on the difficulties of enforcing warrants across jurisdictions. He is probably mindful of that, given his Scottish experience in relation to English law. I understand that his intention is to improve the prospects for successfully enforcing obligations under RIPA on overseas companies, and clearly none of us could object to that.

Clause 4 makes clear that the obligations under RIPA apply equally to persons overseas who are providing telecommunications services to customers in the UK. It also makes it clear that those obligations are enforceable by injunction through the domestic courts. We have been clear throughout the passage of the Bill that we are not altering or extending the powers under RIPA. Accordingly, the provisions in Clause 4 simply make clear the status quo. It is on that basis that the House of Commons has consented to the Bill, and it is the basis on which it has been presented to this House.

The noble and learned Lord’s amendment would go much further than this, by purporting to allow for the enforcement of obligations under RIPA through overseas courts. As drafted, it would do this only in respect of requests for communications data. However, I assume his interest is in the enforceability of obligations under RIPA more generally. In view of the clear intention of the House of Commons, and of noble Lords who have supported this Bill on the basis that it does not introduce new powers, this is not an amendment that the Government could support. The issue of enforcement overseas is important but it is not a matter that we can address through the Bill before us.

As I have said, the Government’s approach under RIPA has always been to work with companies. We hope that making clear the obligations under RIPA will avoid the need for enforcement action. Where we have no option but to enforce, we believe that the prospect of sanction in the domestic courts—I repeat, the domestic courts—is a threat sufficient to compel many international companies to co-operate. That, however, is not our first position, which is to work with companies. Where necessary, there are established protocols for seeking recognition of a domestic judgment in foreign jurisdictions. It may be possible to strengthen our position in respect of this but these are complex issues of law, and are not matters that we can deal with today, when we are fast-tracking legislation through Parliament. We will look for the new tyre for our puncture when we consider the review that will take place after the enaction of this Bill, which has been introduced in the context of a pressing need to put the law beyond doubt. That is what the Bill is about, and only that.

I appreciate the noble and learned Lord’s intention with this amendment, and his useful interventions, including those at Second Reading, but the amendment is unnecessary. I am sure, though, that the issue of enforcement overseas is one in which subsequent reviews of powers and capabilities will be considered, and in which he will want to take part. I draw noble Lords’ attention to the fact that there is a copy of the paper, Senior Diplomat Draft Terms of Reference, in the Printed Paper Office. It states that one of the tasks of this diplomat will be:

“To consider a range of options for strengthening existing arrangements, including … through Mutual Legal Assistance Treaty systems”—

my noble friend was on the ball there—

“mutual recognition of national warrants; and … direct requests from law enforcement and intelligence agencies to the companies which hold the data”.

That is why this appointment is seen as being so important. I hope that with those assurances, a clearer view of the Government’s objectives in bringing this Bill forward, and having had an opportunity to consider the issues that the noble and learned Lord has raised, he will withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am grateful once again to the Minister for his helpful and full reply. I take absolutely the point that it is not the intention in the Bill to expand the existing law, and it would certainly not be my wish to disrupt that policy, which would be contrary to the basis on which the Bill passed through the other place.

I am still left in some doubt as to the purpose of Clause 4(10), which excited my interest, because it states,

“including in the case of a person outside the United Kingdom”.

I am tempted—but I shall not succumb to the temptation—to ask the Minister for an example of case where it would matter whether that provision is in the legislation. It may be that some nods and winks would give colour to the suggestion that this kind of thing may have happened in the past. It is because I have great difficulty in visualising the purpose of the provision that I am still in a state of some concern as to whether it is useful to have it there at all. I am not, however, asking for it to be removed. In view of what the Minister has said, I am happy not to press the amendment, which would add additional words. I shall leave it at that and I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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[Lord Carlile of Berriew]

My Lords, I join those who urge my noble friend not to be attracted by the arguments presented this afternoon for reducing the time available for the full consideration of these matters. I also join those who thank him for the assistance we have been given in the letter that was sent this morning to some, and possibly all, of us who are present. I also thank his officials who put up with some pestering telephone calls this morning, certainly from me.

I remind your Lordships that the sunset provision does not provide for revival of this legislation by statutory instrument. The sunset provision ensures that the legislation falls completely on 31 December 2016. We therefore have to allow due and proper time for consideration of these matters.

I join the noble Lord, Lord Rooker, in what he said. I am sure that the House was very pleased to hear that he is a member of the RUSI panel that has been put together with some difficulty and over considerable time at the behest of the Deputy Prime Minister. As I understand it, the panel will consider a substantial amount of evidence, not just from within the United Kingdom. It will be making comparisons with other jurisdictions, and the range of talents on the panel goes right across the disciplines that deal with this issue. We have to allow time for the RUSI panel to do its work.

A number of other reviews are also taking place. Shortening the timescale for the new legislation would undermine the extremely important review of RIPA, which will be a thorough and systematic review of the Act. Let us not forget that completely new legislation has to be in place before the end of 2016. We know in this House that, very properly, that legislation will be the subject of detailed debate. We know that some of my noble friends—I am looking at my noble friend Lord Strasburger who quite properly will be one of those—will put down amendments that will challenge some of the thinking behind the legislation that will be presented. That legislation will take some months to go through this House and we must be ready for it with reviews that have really looked at every issue.

Perhaps I can be forgiven for using a couple of words of Latin, which would probably be deprecated by the noble and learned Lord, Lord Hope, if he were sitting in court. I am pleased to see that he is shaking his head. Perhaps this is the time when we should—

[Lord Hope of Craighead]

I come from Scotland where Latin is still spoken by lawyers. We did not adopt the approach of the noble and learned Lord, Lord Woolf. I am very happy to listen to Latin words—and perhaps I will understand them as well.

[Lord Carlile of Berriew]

Not so long ago, I went to Cranston’s tea rooms in Glasgow and tried to order some lunch. Plainly it was because Latin was being spoken that I had such difficulty. What I was going to say, using two words of Latin, was that perhaps this is a time when we should festina lente.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I should confess that when some of us went up to the office yesterday evening, I asked to put my name down in support of this amendment but I was told that since four people had already done so, there was not room for my name. The fact that my name is not on the amendment gives me a little more freedom to think about the issue.

I was anxious to support the amendment because the public, for some of the reasons that have been given by the noble Baroness and others, will be suspicious about the length of time that seems to have been taken in order to allow this measure to survive until it has expired. But I am persuaded by what the noble Lords, Lord Rooker, Lord West and Lord Butler, have said, and also by what was said yesterday evening by the noble Baroness, Lady Lane-Fox. The Minister may remember that she was chiding us for being hopelessly out of date and telling us that the whole thinking about the descriptions of the various mechanisms that we use needed to be revised. There is a great deal of work that has to be done to get the legislation right and to get it modernised, and the last thing we want, quite frankly, is to cut ourselves off by having a timetable that we have to work to in order to put legislation in place that will replace the measure we are talking about today.

I confess that I have changed my mind. I regret disappointing those whom I was seeking to support yesterday evening but I think the wiser course is to leave the date as it is, although there is certainly something to be done by way of public relations to persuade the public that the date has been well chosen for very good reasons.

Data Retention and Investigatory Powers Bill

Lord Hope of Craighead Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it was on a Wednesday in July, like today, just over nine years ago, on 7 July 2005, that the London bombings took place. I am sure that all noble Lords have their own memories of that dreadful day. My memories are closely associated with this Chamber. That morning the Lords of Appeal, who were still working in this building, gathered to give judgment. We were due to give judgment at 9.45, and before we could sit, as the House, to give judgment, prayers had to be said—but we found that the Bishop was missing. Prayers were said by the senior Law Lord, Lord Bingham, on our behalf.

The rumour was that the Bishop had been unable to come here because there had been an electrical surge on the Underground, and his line had been out of operation. It was only when we got upstairs to our rooms on the west corridor that we realised the real horror of that day. Those who remember it will recall how London became completely seized up with traffic jams, no public transport was able to move, mobile phones would not work, and the general feeling was one of extreme distress—horror at what had happened to the victims, and immense inconvenience and disruption to the way of life in London.

I mention that because whenever I am confronted, in court or indeed in here, by this kind of issue, about the balance between security and the right to privacy, I seek to find where the balance should be struck, realising how immensely important it is, from whichever side one is looking at the problem.

Against that background, one must commend the security services for the painstaking work that they do on our behalf, which is, no doubt, greatly assisted by the data that we are thinking about. One should also appreciate the immense burden that rests on Ministers, who have to take some of these acute decisions on our behalf, balancing, as they have to, privacy against security.

This is an extremely difficult issue, but on the principle of the measure I am in no doubt—as I think almost all of us agree—that the Bill should have a Second Reading. Its purpose, and the principle that lies behind it, seem to me entirely beyond question. The problem, as always when one considers matters in this House, is one of detail—and it is the opportunity of detailed scrutiny that is, in effect, being denied to us by the speed with which the measure has come forward.

Speaking entirely for myself, I think it is a great shame that the Government have excited criticism of the kind that they have, which undermines public confidence in an area where, as others have said, public confidence is so important. It is a great pity, it is a great disadvantage, and it is difficult for us, who are coping with detail in an unfamiliar area, to meet the requirements we have to meet in order to contribute effectively to the debate.

For my own part, I started my study of the issue by looking at the judgment of the European Court of Justice that gave rise to all the problems, in the case called Digital Rights Ireland, reported in April this year. It is an interesting, and quite easily read, judgment, and quite a lot of it entirely supports what the Government seek to do. The basis of the criticism is Article 7 of the European Charter of Fundamental Rights, to which this country is not a party. However, one has to bear in mind the fact that Article 52(3) of the charter says that in so far as it,

“contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms”—

the ECHR, to which we are, of course, a party—

“the meaning and scope of those rights shall be the same as those laid down by the said Convention”.

So there is a read-across between Article 7 of the charter, which the European Court of Justice was talking about, and Article 8 of the convention, to which the noble Lord, Lord West, referred, which contains the guarantee of the right to privacy. However, it is extremely important to appreciate that, as he also said, it contains the balancing provision that:

“There shall be no interference … except such as is in accordance with the law and is necessary in a democratic society”.

One is entitled to take that into account in considering what the court was talking about.

When the court analysed the case—this is in paragraphs 41, 43 and 44 of the judgment—it was satisfied that there was a genuine national interest in what the measure sought to do, and indeed in the objective of the measure that it was considering, which was the directive. In its judgment the court clearly makes the point that in connection with such issues,

“the retention of … data may be considered to be appropriate for attaining the objective pursued by that directive”.

So far, so good. But what was the basis of the criticism? One has to examine the judgment a little bit to understand what caused concern, and ultimately led to the decision that the court gave. We find that in paragraphs 37, 45 and 46, as well as paragraphs 59, 64 and 65. It was the detail of the wording of the directive, and in particular the wide-ranging and potentially serious interference with fundamental rights that it gave rise to, that caused the problem. This is the crucial sentence, in paragraph 65:

“without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary”.

We find the same phrase—

“limited to what is strictly necessary”—

in paragraph 64. The noble Lord, Lord Paddick, picked up that aspect when he used the phrase “absolutely necessary” in his speech. This is a high test, and the court found that it was not satisfied by the directive.

That leads me to my first point for the Minister. In Clause 1(1) of the Bill, everything depends on the view taken by the Secretary of State about the requirement being imposed. The phrase used is “necessary and proportionate”. I would be grateful if the Minister could explain where that phrase comes from. It is not the phrase used by the European Court of Justice, and one might be forgiven for thinking that it does not constitute quite as high a test as the strict test that the court laid down in the phrase, “strictly necessary”.

The wording is important, because any court that is testing the ability of the scheme that the Bill contains to satisfy the requirements of the convention will look at the precise wording and see whether the guidance given to the Secretary of State, who has to take the decision, is sufficiently accurate and precise to enable him or her to fulfil the requirements of the directive. I am disappointed, I must say, that the carefully chosen wording of the court was not adopted here, and I would be grateful for an explanation of why that was not the case.

This is not an opportunity to go into detail, but one of the unfortunate aspects of the procedure being adopted is that we are being asked to rest on the basis of amendments to a code of practice and no doubt further regulations, which we have not seen. So a great deal of this has to be taken on trust. I am prepared, in this area, to repose a great deal of trust in Ministers. But the wording of the test that they are being asked to apply is absolutely crucial. If one is seeking a sound foundation—a legal basis that puts the matter beyond doubt—one needs to choose the words extremely carefully.

Finally, I come to the question of extraterritoriality. Like others, I have been given suggestions—including a considerably detailed one—that there is an extension of the investigatory powers. I think I owe it to Jack Straw, as the noble Lord, Lord Howard, mentioned earlier, to make this point: in Section 2 of the Regulation of Investigatory Powers Act there is a definition of one of the expressions in the Act—“telecommunications system”. That definition says that a “telecommunications system” means a system,

“whether wholly or partly in the United Kingdom or elsewhere”.

Jack Straw stressed the words “or elsewhere”, and said that built into the definitions in RIPA from the very beginning was a recognition that such systems operate widely well beyond our own shores, so it was wrong to think that extraterritoriality was something new. I accept that, and here is the foundation for that proposition, right in Section 2 of RIPA. I also accept that since then there has been some informal method of imposing extraterritoriality—no doubt very properly, with the co-operation of overseas bodies—but that, the way things are nowadays, there is a need for that to be regularised. That is what Clause 4 is all about. However, I have a word of warning. Warrants are all very well; you can write a warrant and get it issued. The problem is in its enforcement.

I will give two examples, one of which takes us back to 1987 and the Zircon affair, which may not mean very much to us nowadays. The journalist Duncan Campbell was working with the BBC to present a series of programmes called “Secret Society”. One of his programmes was about the funding by government of a spy satellite, which in those days seemed a horrifying thing to do—perhaps we are now so used to them that we do not mind them. Nevertheless, Duncan Campbell thought that something extremely sinister was going on, and the BBC, in Glasgow, as it happened, had in its possession a great deal of material on that. Special Branch knew about that, got a warrant in London, went over the border to Glasgow and delivered the warrant to the BBC, which caved in and gave a lot of material to Special Branch. The BBC then consulted its solicitor, who looked at the warrant and said, “This is no good, because it hasn’t been passed through the system for the enforcement of warrants in Scotland—no sheriff has been asked to look at it”. So all the stuff had to be handed back. Special Branch went back over the system, tried a second time—got it wrong again—and the third time got it right. All sorts of things could have happened, although I do not suppose that much happened, because they were dealing with paper copies. However, nowadays it is so important to get the system right. Has thought been given—as has obviously been given to the mechanism for the creation of the warrant in the first place—to its enforcement?

The other example is a reported decision of this House in a case called Granada Television, in 1999, which was the reverse problem. The Scots were trying to enforce a warrant or to obtain material in Manchester under a warrant for use in Scotland. They ran into all sorts of difficulties, which are described in that case, because of the problems of cross-border warrants. Therefore, while a great deal of thought has been given to the design of Clause 4—which I admire, as it deals with many of the problems—has thought been given to how you can enforce these warrants on people overseas? What about their enforceability in the United States or in China and the mechanisms which are necessary to make them effective? There is enough here that goes so far within our own shores, but the enforceability of warrants overseas may matter at the end of the day if we are to move beyond the informal process into an area that stands up to scrutiny in a court of law.

Serious Crime Bill [HL]

Lord Hope of Craighead Excerpts

Tuesday 8th July 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I have been drawn to my feet by the comments of the noble Baroness, Lady Smith of Basildon. I have had experience of prosecuting cases involving gang violence—in a way, this is a point in favour of the injunction system. One of the great difficulties for the prosecutor is proving involvement in these activities beyond reasonable doubt. In Scotland, we used to have an offence called mobbing and rioting—that was one of my first forays into prosecution—where a whole number of people were brought into court and accused of being involved in a mob. The noble Baroness is quite right: if they were so involved, they were liable for everything that the mob did. I found that I lost quite a number of the accused because I could not prove that they were sufficiently connected to be brought into the system. If one was applying the civil standard, it would be reasonably clear that one would be able to say that they were involved in the kind of activity that the injunction is directed at. I therefore see a value in the injunction system.

I may have misunderstood the Minister, but did he say that 45% of such injunctions are breached? That troubles me for a reason that might be worth mentioning. In the cases that I came across, there was great intimidation of individuals to force them into the gang activity. If one has a typical city area where the gang competes with a gang from another place 300 or 400 yards along the road, all youths of a particular age are expected to participate in the activities of the gang. I am a bit troubled by the idea of a person being singled out for an injunction and then turning to their colleagues—or compatriots, it might be—who are saying, “Come along and join us. Get hold of a weapon and attack the other people”. If he says, “Well, I’m sorry, I can’t do that, because I’ve got an injunction against me”, I think that he would be jeered at and drawn along simply out of shame and intimidation. It is that aspect of the system that worries me. I would be interested if the Minister had any information as to why such a high proportion of those injunctions are being breached, because it might suggest that there is something in the system that is in need of improvement.

Broadly speaking, I understand the policy behind this. As a former prosecutor, I think that it has a value in being able to get people into some kind of legal system to deter them from further activity which the criminal law perhaps cannot do.

[Lord Elton]

My Lords, mine is a much smaller question and reveals my ignorance of POCA. I understand that the applications will be made by the police. How long is it expected that it will take to grant the applications and are the arrangements for the interim in any way influenced by the proposed new section? I imagine that there is a section in the parent Act which applies the standards in the new section to the interim injunction. If not, how do they relate?

Serious Crime Bill [HL]

Lord Hope of Craighead Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, this is not an easy Bill to read, as I think the noble Baroness, Lady Hamwee, was indicating at the beginning of her speech, as so much of it is concerned with updating existing legislation in those fields with which it deals. Updating is really the thread that runs right through the Bill, from start to finish. In itself, I suggest that is to be welcomed. In each of those fields, experience has shown us that there are gaps that need to be filled. We know that where there are gaps in legislation of this kind, they will be exploited. Where there is room for evasion, it will be exploited, too. All the areas of law with which the Bill is concerned are vulnerable to being undermined in this way or are lacking in the power that comes with the increased sentences to which the Minister referred.

Serious and organised criminals—those who deal in illegal drugs, attack our computer systems or are engaged in paedophilia or terrorism—are not going to go away. Their presence in our community is a constant threat. We need to keep our lines of attack and defences up to date, so it is not surprising that the statutes with which this Bill deals are in need of amendment, although some were enacted not all that long ago, and that new measures are required in support of those we already have. Speaking broadly, the Bill deserves our warm support.

I am especially grateful to the Minister for the information pack that we were given the other day to help us through these provisions. It contains fact sheets and Keeling schedules, which are of course extremely useful, but they do not tell one everything. I was troubled by the fact that on my first reading, it seemed that the provisions in Clause 3(3)(b) and Clause 24(3), amending Sections 33 and 183 of POCA, which deal with appeals against the making of confiscation orders, provided appellants with an unqualified right of appeal to the Supreme Court. Everyone else has to go through a permission process before an appeal can be heard there and, as a result, appeals in the Supreme Court are available only if a point of general importance is involved and the decision appealed against raises a point that ought to be considered by the Supreme Court. On my first reading of this part of the Bill, I asked myself: why should the appeals in this field be any different?

The answer was provided by two of the Supreme Court’s judicial assistants but they did not find it in the Keeling schedules because it is to be found in delegated legislation set out in two orders made by the Secretary of State in 2003, details of which I need not give. However, the result is that the appeals referred to in these clauses are subject to the ordinary rule, although that is not apparent on first reading. I am greatly relieved that that is so and I hope that my researchers have provided me with the correct answer.

Some of the provisions, although at first sight well meaning, may require careful scrutiny. One of them is Clause 41 in Part 3, to which the noble Baroness referred and the noble Lord, Lord Richard, drew our attention. In response to what the noble Lord said, it seems to me that the way in which the issue of organised crime is being approached in Clause 41 is, in principle, the right one. He mentioned the alternative of using the law of conspiracy to deal with matters of this kind. When I was serving as a Lord of Appeal in Ordinary I was involved in a case where a conspiracy charge was used in connection with money-laundering. In the days when it was used, the rules for the framing of counts in indictment were subject to what is called the duplicity rule. It was very complicated and I shall not trouble to explain it but the point was that conspiracy was used to get around the difficulty. When the appeal reached us, we had to quash the conviction because the evidence necessary to prove conspiracy was not there.

It is quite a complicated area of law. Although, as a Scots lawyer, I hesitate to make suggestions for the English, I think conspiracy should be avoided if it is possible to do so. The great advantage of Clause 41 is that it goes straight to the heart of what it is seeking to attack and describes it in simple language. To that extent, I welcome Clause 41 and hope that the noble Lord feels able to defend it. As the noble Baroness, Lady Hamwee, indicated, there is concern that some well meaning, law-abiding professionals might be brought within the reach of the clause when what they are doing is providing advice and intelligence to the authorities. They might feel deterred from doing this—from getting too close to the people that Clause 41 is talking about—in case they become drawn into some kind of criminal prosecution. It is all about how the offence is defined in Clause 41(2) and the way the defence in Clause 41(8) is worded. It is not necessary to say more about this, but it is a clause that will require detailed examination in Committee.

I welcome the opportunity that the provision in Clause 62—particularly Clause 62(2), which deals with the meaning of “unnecessary suffering”—gives us to debate the issue. I say that against the background of a case of domestic violence, Yemshaw, in which my noble and learned friend Lord Brown of Eaton-under-Heywood and I were involved some years ago. In that case, the House was asked to consider whether the phrase “domestic violence” in the Housing Act 1996 to describe circumstances in which it would not be reasonable to expect a person to live with someone else in the same accommodation, required there to be, and be limited to, some form of physical contact. There had been two Court of Appeal decisions which said precisely that. Although the noble and learned Lord, Lord Brown, hesitated somewhat, we were persuaded in Yemshaw that, because of the way in which people look at these matters, it would be unreasonable to confine domestic violence to physical contact. So many cases of that kind are the product of intimidation and psychological abuse, which is equally untenable and makes it equally difficult for someone to live with someone else. Psychological harm was, therefore, said to be included within “domestic violence”.

The concern is that, if the issue of unnecessary suffering, as defined in Section 1 of the Children and Young Persons Act 1933, were to come to court against the background of Yemshaw, the court might feel that it should extend it to psychological as well as physical damage. There will be differing views in the House as to whether this would be desirable. My only point is to welcome the opportunity that we shall have to debate it. I mention Yemshaw because it indicates that this is an area of law that others are working on, as well as us. It is eminently desirable that Parliament should clear this up, rather than have the matter debated, with perhaps less range of discussion, in the courts. That is to be welcomed, whatever the end result may be.

There are one or two other matters that I should like to mention, particularly in relation to Scotland. This is the result of studying the Bill with the Scottish jurisdiction in mind. I have given the Minister notice and I hope he will at least be able to give me some indication in his reply as to what the answer would be. The first relates to Clause 63, which deals with the paedophile manual. The curious feature of that provision is that, according to the wording of the clause, it extends only to England, Wales and Northern Ireland, and not to Scotland. That is confirmed by Clause 69(2)(c), which deals with the extent of the Bill and makes it absolutely plain that it does not extend to Scotland. I take it that it is no accident that it is drafted in this way.

That seems at first sight to give rise to a very strange situation. We all live on the same island, as we keep hearing in the debates about the referendum. You could imagine that if someone who lived in Carlisle or Berwick-upon-Tweed wished to get access to one of these manuals, he would have to drive only a short distance to Gretna Green or Eyemouth and find someone who was in possession of one. He could consult it and then go back to Carlisle or Berwick-upon-Tweed and do whatever the manual had taught him to do. It is very puzzling that this does not extend to Scotland. So far as my researches go, there is no equivalent provision, at least in these terms; I discussed this question this morning with a criminal law practitioner and he said that to me. It is true that a recent measure in Scotland, the Sexual Offences (Scotland) Act 2009, covers a lot of ground and it may be that the Scottish Government are reluctant to expand on it at this stage, but some explanation is required as to why this measure, which seems eminently desirable, is confined to south of the border and why it appears to be assumed that people in Scotland will not be engaging in the same malpractice.

The second point is rather more technical. It relates to the provision in Paragraph 23 of Schedule 1, which provides that the civil standard of proof will apply to any proceedings in the High Court of Justiciary or a sheriff court relating to serious crime prevention orders. I suggest that the clause may be too widely drawn. It is mirrored to an extent by the provisions relating to England and Wales about the standard of proof, but the point that emerges from a detailed reading of these provisions is that the civil standard applies to proceedings in the High Court, which in England is mainly a civil court and deals with the making or amendment of these orders, whereas the criminal standard applies to proceedings brought in the Crown Court, which is the equivalent of the High Court of Justiciary or the sheriff exercising his criminal jurisdiction. It is not immediately clear to me why the civil standard should be expressed so broadly in relation to criminal jurisdiction in Scotland when it is carefully separated out in the equivalent English provision.

The names of the courts are bit confusing but I am sure that the draftsmen understand that the High Court of Justiciary is entirely criminal—that is its jurisdiction exclusively—and that it is therefore right to be very careful about altering the standard of proof there. The point is that there could be proceedings under these orders that relate to serious crimes—an attempt to pervert the course of justice in relation to these orders, for example—which one surely would have thought could be prosecuted according to the criminal standard. Again, this matter requires some explanation. It may be that those north of the border have some guidance to give us as to what the answer should be.

My final point is a quibble about drafting. I am reminded that there used to be a practice when I first came into this House in the middle of the 1990s; from the Cross Benches you would see Lord Simon of Glaisdale and one or two others sitting looking at Bills to find bits of grammar or drafting that they could draw to the House’s attention. Usually this was a bit tongue in cheek, but sometimes there were bits that really were worth mentioning.

There is one minor complaint that I should like to voice about what one finds in Clauses 57(1) and 58(3). Clause 57(1) deals with the jurisdiction in the magistrates’ court, but magistrates’ courts do not sit in Scotland. In Clause 58(3) we find that appeals, apparently from a magistrates’ court, may be taken in Scotland to the sheriff principal, who sits only in Scotland. Again, if one delves around in the Bill, the answer is to be found later on: in Clause 61(4) we find that a reference to the magistrates’ court is to be read as a reference to the sheriff. However, it is rather untidy to have to go there to interpret magistrates’ courts, when in Clause 58 it is all set out in full for you so that you have the proper English court and this court in the same clause. It would have been better either to group all the Scottish bits in Clauses 57 and 58, or to leave Clause 58 as one that apparently dealt only with England, and then clear it all up as is apparently done in Clause 61. That is the kind of point that Lord Simon would have raised. He would never have dreamt of putting down an amendment to deal with it but would have thought it proper to draw the House’s attention to it, and I should like to do that.

Immigration Bill

Lord Hope of Craighead Excerpts

Monday 12th May 2014 Lords Chamber

The professor points out that the international regime regulating the movement of people between states is premised on the credit accorded to nationally issued passports the legally binding guarantee of returnability attaching to those documents and the implicit prohibition on a state unilaterally resiling from that guarantee in violation of the rights of other states. The combined resources of the FCO and Home Office have been unable to provide a single instance indicating either that a national passport has not been treated in international law as guaranteeing returnability, or that a state has refused to accept back persons admitted to another country on the basis of such a passport. I still have these concerns, in addition to the ones so ably expressed by the noble Lord, Lord Pannick, and my noble friend and colleague Lord Macdonald.

[Lord Hope of Craighead]

My Lords, I will add a footnote to the points made by the noble Lord, Lord Pannick, and my noble and learned friend Lord Brown of Eaton-under-Heywood. I join them in welcoming Amendment 18A and Amendment 18B, which falls to be read together with it. Two questions lie behind one’s examination of Amendment 18A. The first concerns the point mentioned by the Minister once, if not twice. Is the wording of the provision compatible with our international obligations? The second concerns how the provision will work in practice. This will be the subject of the reviews referred to in Amendment 18B.

On the first point, the Minister said—I think twice, possibly more often—that the wording of the provision is deliberately narrow. He said it was narrowly worded and precisely targeted; it had to be narrowly worded and precisely targeted to meet the requirements of the convention. The international obligations are found in the European convention on nationality of 1997. It is worth reminding ourselves that the preamble says that it is concerned to avoid cases of statelessness “as far as possible”. The principles set out in Article 4 include that,

“everyone has the right to a nationality … statelessness shall be avoided”,

and,

“no one shall be arbitrarily deprived of his or her nationality”.

I think it is well known that Section 40 of the British Nationality Act 1981, as substituted by the Nationality, Immigration and Asylum Act 2002, was framed with very close regard to the provisions of that convention. One can see it, too, in the amendments introduced by the Bill. The second condition set out in new Section 40(4A) refers to the situation where,

“the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.

The phrase “the vital interests” is a precise quotation from Article 7(1)(d) of the convention and one can see how closely tied the wording of the statute is to that of the convention. It is important that the wording should be narrowly framed in order to meet what the preamble and Article 4 were talking about, but that has another significance when one looks at how the wording will work in practice. It is well known that the courts will construe legislation on the assumption that Parliament has intended to legislate in accordance with this country’s international obligations. One would expect a court to have regard to the wording of the convention and to construe the words narrowly. They are narrowly worded but they will be narrowly construed, too. The key words already identified are “is able”. It is not “maybe” or a possibility; it is “is”, in the present tense. “Able” is itself a powerful word, and the new Section refers to being able to become a national of a country, not to an ability to apply or be considered.

One other point is worth mentioning to appreciate the full package with which this House has been presented. Section 40of the British Nationality Act, as amended, describes the obligation of the Secretary of State in the event of an order being made under that section. It states:

“Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying … that the Secretary of State has decided to make and order”—

this is really important—

“the reasons for the order, and … the… right of appeal”.

These things must be set out in the written statement. Particularly important is the reference to reasons, which will be examined with great care should the matter go to appeal.

There is just one point that is worth bearing in mind: the reference to rights of appeal. Concern has been expressed by Liberty, and perhaps others, about the situation in which somebody would find themselves when faced with a written statement of this kind when abroad and the prospect of an order of this kind being made against them. It would seem to require exercising the right of appeal from abroad. That is a practical problem which those individuals might face.

My concern is whether the review referred to in Amendment 18B would be capable of picking up practical issues of that kind. It is difficult for us at this stage and in these situations to forecast the future with any precision, but that is the kind of practical point—envisaging how the issue will be worked out in practice—that will require very careful consideration. The more disadvantaged somebody would be by having to exercise his right of appeal abroad, the more concerned one would be about the fairness of the provision and, indeed, its compatibility with the convention. When the Minister replies, will he be good enough to cover that point about the scope of the review and whether it would include the kind of practical problem to which I have just referred?

[Baroness Kennedy of The Shaws (Lab)]

I have concerns about the shift by the Government, although I welcome that there has been a shift in the way that has already been described. My concern is that reasonable grounds to believe that a person may be able to acquire another nationality does not really deal with the difficulty we face in the circumstances in which these cases arise. The cases that have taken place so far in which people have had their citizenship removed have almost invariably—certainly in my experience—involved persons abroad. The reason given is that the person is a threat to national security. I raise this question, among those already raised by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope: would another country seriously consider giving nationality, even to someone who might have the ability to apply for nationality of that country, if it knew that British citizenship had been removed on the grounds that the person was believed to be in some way linked to, or to condone, international terrorism? Do we seriously believe that another state is likely to grant nationality to someone where that has been the basis for the removal of citizenship by Britain? My grandparents were Irish, and I am sure that I am entitled to apply for an Irish passport, although I have never done so, but would Ireland seriously be interested in acquiring a citizen who has already been deemed by Britain to be involved in supporting, condoning or in some way furthering terrorism? We have to be real about the circumstances that we are contemplating.

I want to add a number of questions to the ones that have already been asked.

Immigration Bill

Lord Hope of Craighead Excerpts

Tuesday 6th May 2014 Lords Chamber

It was useful to have our discussions and I hope that I have clarified the position and have given appropriate reassurance to your Lordships’ House. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I express my gratitude to the Minister both for his amendment and for the clarifications that he has given on the guidance that will be given to tribunals. I am sure that the amendment helps to remove an element of doubt about the scope of the words “new matter”. It became clear as we discussed the matter following the debate on Report that some change was needed, and I am extremely grateful to the Minister for his willingness to listen to us and to deal with that point.

As for the guidance, I gave rather short notice of the point that the Minister has dealt with but he has dealt with it to my satisfaction. Again, I am very grateful to him for his willingness to meet us to discuss these rather tricky matters.

[Baroness Berridge (Con)]

My Lords, first, my apologies for missing the first two sentences of the debate on this amendment. I left 1 Millbank over the road as soon as debate on the Bill started but I am not as nimble as I thought and I make my apologies to the House.

I, too, am grateful to the Minister for his reflection on this matter since Report and for the amendment that the Government have laid. I join the noble and learned Lord, Lord Hope, in thanking him for the meeting that was arranged at short notice prior to the Recess. I, too, am grateful that the amendment narrows the definition of what the tribunal should consider to be a new matter and that what is or is not a new matter will be for the tribunal to determine according to the legislation. The narrowing of the definition is most welcome as, once the matter is determined to be a new matter, the tribunal cannot hear it without the consent of the Home Secretary.

I am also grateful for the specific guidance outlining the circumstances in which the Home Secretary will consent to such a new matter being in front of a tribunal. I am grateful for my noble friend’s explanation of what will happen if very junior counsel are in front of a tribunal when a new matter is raised and unfortunately they cannot get instructions or the file containing the necessary information.

Everything in the Government’s amendment is welcome as far as it goes but I do not think that it will come as any surprise to the Minister that I remain disappointed that the Government have not laid an amendment giving the tribunal an exceptional discretion to hear a new matter if the demands of justice require it. Justice is of course the overriding purpose of our courts and tribunals, and ordinarily the Secretary of State should be the primary decision-maker on a new matter but not if justice demands otherwise.

On Report, the constitution arguments were ably outlined by the noble and learned Lords, Lord Hope, Lord Woolf and Lord Brown. This is the first time that a party to any proceedings will have this kind of control over jurisdiction and I shall be interested to know—as I am sure all noble Lords will be—how it works out in practice. I would be grateful if the Minister could indicate whether, if this new power results in judicial review cases, there will be a way of keeping a record of the judicial review decisions in relation to the guidance and to consent being refused. Will those figures be available some time after the Bill is passed for the purposes of post-legislative scrutiny?

Immigration Bill

Lord Hope of Craighead Excerpts

Tuesday 1st April 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, this is a matter in which I, like the noble and learned Lord, Lord Brown, have had considerable practical experience, first as a Treasury junior, who for years advised and acted for the Government on these problems that arise in immigration matters, which can be very frustrating indeed.

I have been delighted at the steps that were taken, with the encouragement of the judiciary, to transfer matters which previously went before the courts on judicial review to tribunals. We have to recognise that there are situations within the court system where tribunals are better equipped to deal with matters than the courts are, because the tribunals’ knowledge and experience is so considerable. Because of that, this process has continued. I am happy to say that the noble and learned Lord, Lord Mackay, does himself an injustice when he suggests that what he sought to do has not produced positive results. It has, and I can say to the House with confidence that if we had not built up the tribunal system in the way it has been built up, from a practical point of view judicial review would be an area of great difficulty in the courts today.

It is therefore very important that we do not do something that is contrary to principle and which reflects adversely on the tribunal system. Of course, that was not the intention of those who were responsible for drafting the amendment now under consideration. However, the transfer from the tribunal that has jurisdiction to deal with matters of this sort, for the sort of reasons that have been put forward, to one of the parties of the proceedings, is just totally and utterly contrary to principle and it should be and can be rectified in a way that is acceptable.

The noble Baroness, Lady Berridge, was very modest about her amendment; she said that it may not be perfect, and she may be right about that, but this matter certainly warrants consideration. It would be a very undesirable precedent indeed to create a situation where one of the parties to the proceedings has in effect to give its consent to the other party doing something that justice may require. In addition, the suggestion that something should go back to the beginning is just out of accord with what is now the practice in the courts. It is true that the real decision-making body is the Minister and not the courts, but for years, in my experience, the courts, when a new point has arisen, have taken the view that it is more practical and more in accord with common sense for the tribunal that is dealing with the matter to continue to deal with the new matter, if it thinks that it is right to do so, rather than to send it back to the Secretary of State, who is technically the decision-making body under the legislation.

With respect to the noble and learned Lord, Lord Mackay, to whom I bow in these matters, because he has been such a benign influence in the development of our court system, on this occasion the difference that he has with the noble and learned Lord, Lord Brown, and myself is misplaced and is not in accord with the practice adopted by the courts today, when a matter comes before them that should technically go back and discretion is exercised by the court to save everybody’s time and money by dealing with it themselves. So I urge the Minister to have another look at this matter, consult on it and come back at Third Reading.

[Lord Hope of Craighead (CB)]

I shall say a few words in support of the noble Baroness’s amendment. I thought that she made a very valuable point when she referred to the issue as raising an issue of constitutional principle, because it goes right back to the formation and foundations of the rule of law, where one of the two basic principles is that no man should be a judge in his own court. This was long before the referees got on to the football pitch, but it is an absolutely basic rule of law teaching, and it acquires particular force as a principle when the party that one is talking about are the Executive. One is taught that there should be a separation of powers between the judiciary and the Executive, and one can think of many countries that one would not wish to live in where the Executive are able to dictate to the courts whether or not they will entertain an argument. It is that kind of spectre that is raised by the proposal in the Bill, which I hope that the Minister will look at again, more carefully.

As for practice in the courts, as the noble and learned Lord, Lord Woolf, was indicating, it is quite common in judicial review for fresh grounds to call for a fresh decision in the course of the same process. The courts do not as a matter of practice send the whole thing back to the beginning so that it has to start off with a fresh writ, to begin all over again. They are well used to this—and, indeed, the kind of test in the amendment is one that is commonly applied by the courts every day in deciding whether or not fresh grounds should be argued.

I have two points respectively on the wording of the amendment. First, when I read the amendment for the first time it occurred to me that I would have liked to see the word “previously” at the very end of it, just to make it clear that the issue is whether there were good grounds for not raising the matter before the Secretary of State on the previous occasion when he was looking at the issue. Secondly, the test that is put in the amendment is relatively mild—“good reasons”. There would perhaps be room for looking at that test again and deciding whether it should be put slightly higher, if the Secretary of State is concerned that the court is not applying the kind of test that he would like to be applied—“very good grounds” or “extremely”, or something of that kind. One cannot draft on the Floor of the House.

--- Later in debate ---

[Viscount Eccles (Con)]

My Lords, it is very risky for a non-lawyer to intervene in such a debate, but I would be most grateful if my noble friend on the Front Bench and, indeed, my noble friend proposing the amendment, would relate new subsection (5), which Clause 15(5) will substitute for Section 85(5) of the 2002 Act, to new subsection (6) because, if I have read it right, new subsection (6) attempts to define “new matter” in a rather narrow way and not in one that means that just anything can be considered by the Secretary of State to be a new matter and therefore referable back to the beginning. I feel that I need enlightening on the relationship between those two proposed new subsections.

[Lord Hope of Craighead]

The reason why I suggested the word “previously” is because that is in new subsection (6) and would link in new subsection (5) with new subsection (6) to show that what one is talking about is exactly the kind of matter being referred to in the definition in new subsection (6).

[Baroness Smith of Basildon]

My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.

I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football. But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.

My only question to the noble Baroness, which I asked her when I saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.

Immigration Bill

Lord Hope of Craighead Excerpts

Wednesday 12th March 2014 Lords Chamber

[Lord Avebury]

My Lords, when we discussed this previously, I, too, asked my noble friend the Minister about the relationship of this provision to Clause 33(4), which says that,

“the Secretary of State must … have regard to the range of health services that are likely to be available free of charge to persons who have been given immigration permission”.

I said that that implied that certain services provided by the health service were not going to be free of charge to these people. My noble friend tried to reassure me on this point but it is there in the Bill. It seems inconsistent with the repeated declarations that were made by my noble friend the Minister—which the noble Lord, Lord Patel, has just quoted—that once you have paid this levy, you are free to access all health services provided by the NHS. If that is the case, Clause 33(4) should be deleted from the Bill.

[Lord Hope of Craighead (CB)]

My Lords, when we discussed Clause 33 previously, the Minister was subjected to a very large number of points. I suggested then—and beg leave to suggest again this evening—that somebody should go over the clause very carefully and look at all the bits in brackets, of which there are quite a lot, and the various subsections and so on, to try to trim it down and make sure that it contains what is really necessary and does not have the opportunities for obscurities and criticism that it presently contains.

It is quite a difficult clause and I understand very well why when one gives power to make an order one wants to give as much scope as one can to the Minister, but this clause goes rather too far by trying to hedge too many bets, and I suggest that it should be looked at very carefully.

[Lord Leigh of Hurley (Con)]

My Lords, I attended some of the debate on Monday and heard my noble friend Lord Bourne refer to the £200—or £150 because he was talking about the student rate at about £3 a week—as being very reasonable and fair. As he said,

“it is the cost of a Sunday newspaper”.—[Official Report, 10/3/14; col. 1605.]

It seems sensible that there is some flexibility in this health charge.

The cost to the National Health Service for an individual between the ages of 15 and 44—presumably young enough to be in reasonably good health normally —is £700 a year. Of course, that rises for older people. As your Lordships may be aware, Professor Meirion Thomas has written extensively about the abuse of health tourism. Because we are not in the Schengen visa system, people do not need compulsory health insurance to come to the UK and as a result he has identified many instances of abuse by healthy people and particularly by people who are not well and pregnant women coming to this country to get health treatment without any coverage of costs.

It is true that the National Health Service has charged such “health tourists” some £300 million but it is also true that it has managed to collect only 16% of the amount it has invoiced. Other countries, such as America, Canada and Australia, have much more severe restrictions on people coming in without health insurance and consequently we get more than our fair share. I would argue for flexibility in the health charge and clarification, as the noble Lord, Lord Patel, requested, of the parts of the health service to which it applies.

--- Later in debate ---

[Lord Taylor of Holbeach]

No, that is not the case, but they may be, as they currently are, charged for particular treatments. There are some medical treatments available in this country which are not available under the National Health Service. That would remain the case. That is not the purpose of that particular phraseology. As I have explained, it is to provide for the charging of different categories of migrants—students and others. That is the purpose of the wording. The National Health Service has always said that it will provide health treatment free at the point of use. The purpose of the charge is to put applicants on the same basis as every other resident of this country, so the anxiety that my noble friend expresses is ill founded. This is not the vehicle for introducing mass charging for treatment under the National Health Service. That is not the purpose of the clause and it will not be possible to achieve it through this legislation.

[Lord Hope of Craighead (CB)]

My Lords, I listened with great interest to that exchange. If the noble Lord is prepared to follow my suggestion and look at the wording, there is a bit of a mismatch between what one finds in Clause 33(1)(b), which mentions,

“any description of such persons”,

and the phrase,

“different amounts may be specified for different purposes”,

in subsection (3)(b). I could understand the linkage if one were talking about different charges for different categories of persons, but it is the breadth of the word “purposes” in subsection (3)(b) which causes difficulty. Looking to the future use of the clause when it becomes a section, it would really be helpful if it were a little more precise.

[Lord Taylor of Holbeach]

I thank the noble and learned Lord for that advice—free legal advice to the Government is considered to be very valuable. I hope that I have been able to explain what the legislation is intended to do and have reassured noble Lords on that point. Beyond that, I can commit to go back to look at the wording of the clause to see whether the intention could be made more explicit. That I will seek to do.

Immigration Bill

Lord Hope of Craighead Excerpts

Monday 10th March 2014 Lords Chamber

Neither tenants nor landlords are pleased with this requirement in the Bill, but we are where we are, and the amendments I am supporting and proposing are intended to moderate and mitigate the effects of this measure. In supporting Amendments 50 and 51, which call for pilot schemes to assess just how workable the arrangements may be, I add to the words of the noble Baroness, Lady Smith, that evaluation of the impact in pilot areas needs to establish not just whether any illegal migrants have been identified by landlords but whether the new measure has distorted the selection of new tenants. Certainly we need to know from the pilots how much the new measure has cost in hard cash and in time and effort for tenants, landlords and local authorities and to what effect. I support these amendments.

[Lord Hope of Craighead (CB)]

My Lords, I rise to speak to Amendment 56, which is tabled in the name of the noble and learned Lord, Lord Mackay of Drumadoon, who regrets that he cannot be in place. I have put my name to the amendment. I should make it clear that the matter with which it deals was drawn to our attention by the Law Society of Scotland. Just to set the background, it raises a short point in relation to Clause 28, the discrimination clause, to which the noble Baroness, Lady Smith, referred. That clause requires the Secretary of State to issue a code of practice with a view to ensuring that landlords or agents do not breach the provisions of the Equality Act 2010 so far as it is related to race when performing the obligations imposed on them by Chapter 1 of Part 3.

Clause 28(3) provides that:

“Before issuing the code (or a revised code) the Secretary of State must consult … the Commission for Equality and Human Rights … the Equality Commission for Northern Ireland”.

This amendment adds the Scottish Human Rights Commission to that list.

The reasoning behind the proposal can be put very shortly. It is that while Chapter 1, with which the code will be concerned, can be said to fall under the broad heading of immigration, which is a reserved matter for the Home Office, it also involves the devolved area of tenancies in relation to both social housing and private lettings between landlord and tenant. This is a sensitive area where the Article 8 right to family life and to respect for the person’s home is involved. It could also be argued that there is an Article 1, Protocol 1, right with regard to the landlord since he is having to take decisions about his own property.

The reference in Clause 28(3)(c) to,

“such persons representing the interests of landlords and tenants as the Secretary of State considers appropriate”,

suggests that there is room for adding something to the two particular bodies which are mentioned in the list set out in the clause. But it is suggested that, in order to complete the protection for the tenant’s rights under a devolved system, the inclusion of the Scottish Human Rights Commission would be appropriate. In a sense, it is a precautionary proposal because one has to be careful with regard both to the devolved system and to the risk of entrenching on the human rights of either party, which could give rise to very unfortunate consequences. The safer course, I respectfully suggest, is to include the Scottish Human Rights Commission so that it can offer its advice on the drafting of the code.

[Baroness Neville-Rolfe (Con)]

My Lords, I am sorry that prior engagements meant that I missed part of the Second Reading debate and could not speak then on this important Bill, which I support. I start by thanking my noble friend the Minister for the briefing he kindly provided on the residential tenancy provisions. I thank noble Lords opposite for initiating a debate on Clause 15, as it gives me the opportunity to probe the Government’s intentions and the “workability” of the provisions, to quote the noble Baroness.

I come at the subject as a business person, although I should declare an interest as the part-owner of a son’s flat which is currently let while he works out of London. We are asking the landlord community, nearly 2 million of us, to be part of the enforcement service for immigration. This is a new burden, as the noble Lord, Lord Best, has said. I understand that, for 62% of landlords, the required documentation is already available to satisfy the provisions. But that leaves a lot of people burdened for the first time, and required to keep copies and records that they do not have to worry about at present. I suspect that many will not know about the new rules and that they risk a civil penalty—£1,000 for the first offence, £3,000 thereafter— if they let to somebody whose papers are not in order.

I have a fear that the immigration authorities, in order to hit targets, could turn their attention to the easy task of cracking down on landlords who make a mistake, rather than the labyrinthine task of fighting illegal immigrants through the courts. Can my noble friend give landlords, especially small landlords who do not use expensive letting agencies, some comfort on these issues?

This is an important Bill, as I have said, and it is clearly essential that the new provisions are communicated really well. I have two thoughts on this and would be glad to hear the Minister’s reactions before we accept the provisions on landlords in Clause 15 and subsequent clauses. One is to use the web properly. We should place on gov.uk, in one user-friendly place, all the new rules for landlords, wherever they are set out, including the new online checking resource that is planned; briefing on the new biometric residence permits, which will ease landlords’ task of identification; the contact details for the phone inquiry line; and the 48-hour e-mail immigration checking service, which I agree will need to be adequately staffed, as the noble Lord, Lord Best, has said.

A different version could also be provided for tenants, including, perhaps—having listened to earlier debates—students, from whom I believe the paperwork requirements may be relatively light. It would be good for all of those people to know what the rules are and be able to check them in a simple place on the web. With modern techniques, prospective tenants could easily translate this briefing using an online app, obviating the need for expensive advice and lawyers.

Secondly, we should ask the landlords’ associations to prepare model clauses on the new immigration controls to be added to their standard shorthold lease. This would make it less likely that the new requirements were overlooked and the tenant would have to make an undertaking, which would be helpful, for example, in avoiding illegal sub-letting.

Finally, I would like to understand the Government’s intentions on timing, a point which links to Amendment 51 on a possible pilot. I believe that the Government plan to trial the new arrangements in a specific area or areas, which is an excellent idea that I would like to see applied to more areas of regulation. However, what would the timetable look like, and will the Government, as suggested by the noble Lords opposite, feel able to feed back to this House what they have learnt before the new system goes nationwide?

As a supporter of the Bill I am very keen that it should work well and not lead to an adverse reaction by small landlords or a reduction in available accommodation because people do not want to risk a fine or the hassle involved in the new scheme. The money-laundering laws were no doubt good in intent, but the repetitive bureaucracy they have introduced into every aspect of asset purchase certainly comes at a cost which affects UK productivity. I am keen to know whether we have learnt from this experience in establishing this important new regime for landlords.