Safety of Rwanda (Asylum and Immigration) Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

Moved by

[Lord Hope of Craighead]

36: Clause 5, page 5, line 15, leave out “Accordingly, a court or tribunal must not” and insert “Notwithstanding subsection (2), a court or tribunal may”

[Lord Hope of Craighead (CB)]

My Lords, there are three amendments in this group, and they are all directed to the provisions of Clause 5 as to how interim measures of the European Court of Human Rights under Rule 39 of its rules are to be dealt with. None of these amendments is to be pressed to a Division, and so, following the example of the noble Baroness, I can be fairly brief.

My Amendment 36 seeks to replace the direction in Clause 5(3) that a court or tribunal of this country

“must not have regard to the interim measure when considering any application or appeal which relates to a decision to remove the person to … Rwanda”

with the provision that a court or tribunal “may” do so.

I have also added my name to Amendment 37, in the name of the noble Lord, Lord Coaker, which would require a Minister of the Crown to consult the Attorney-General before deciding whether the United Kingdom will comply with the interim measure. Amendment 38, in the name of the noble Baroness, Lady Chakrabarti, deals with the problem that Clause 5 creates more directly, in that it seeks to leave out the clause altogether.

Although we deal with the clause in different ways, we are united in our belief that Clause 5 provides for what will be a plain breach of international law. I do not think that I need to say much about that at this stage, because it was very fully debated in Committee. There are two different views, one way and the other, but I believe that, while that difference of view may remain, it can really be regarded as academic when one has regard to what happens in practice.

The noble and learned Lord, Lord Etherton, said in his contribution to our debate on 19 February that:

“International law has, therefore, reached a settled state of practice and agreement between member states and the Strasbourg court”.—[Official Report, 19/2/24; col. 468.]


That agreement is that interim measures are treated as binding. The United Kingdom has contributed to that settled state, not only by always complying with such measures until now but by calling on other states to do so when it suits our interests.

It is well recognised that custom, such as that in which this country has participated, is a source of international law. That has a long history; much of the civil law system, before the adoption of codes in the time of Napoleon, was built on custom and is still part of the law in certain respects in Jersey. The fact that states act in a consistent manner, as the United Kingdom has done and has called on others to do until now, can be seen as a good indication that member states are under an obligation to do so.

[Lord Lilley (Con)]

Will the noble and learned Lord comment on the decision of the French Government to ignore Rule 39 rulings and, in particular, to send someone back to Uzbekistan?

[Lord Hope of Craighead (CB)]

I was trying to explain that I am not getting engaged in that kind of debate. We have discussed the issue very fully in Committee —this is Report, and I have stated my position. I hope that the noble Lord, who has spoken now, will be content to accept that I can proceed and present my position.

[Lord Lilley (Con)]

But your position is that this is now settled and that member states all agree, when they patently do not.

[Lord Hope of Craighead (CB)]

My Lords, I am not going to respond. As I say, this is Report, and I am adopting a very particular position on settled practice, which the United Kingdom has participated in without exception, ever since the matter first was put into the rules. That being so, the idea that this country can simply unilaterally depart from that practice when it suits it is contrary to international law and is misconceived. My amendment, therefore, seeks to avoid that position and would allow the courts of this country to play a part in the procedure.

The Constitution Committee said in its report that Clause 5(3) raises “serious constitutional concerns”. I agree with that. As the committee put it:

“It is conceivable that a person may bring legal proceedings in the UK to compel a minister to adhere to an interim measure”.


Clause 5(3), as it stands, would prevent our courts giving effect to an interim measure in that way. The committee regarded that as a breach of the principle of the independence of the judiciary, which all Ministers of the Crown are under a duty, under Section 3 of the Constitutional Reform Act 2005, to uphold.

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[Lord Stewart of Dirleton (Con)]

The point is that Rule 39 interim measures are not final judgments of the European Court of Human Rights, which do bind the United Kingdom. They are not binding on the United Kingdom domestic courts. When deciding whether to comply with an interim measure indicated by the Strasbourg court, due consideration will be given to the facts in the individual case and careful consideration of the United Kingdom’s international obligations.

As we heard from the noble and learned Lord, Lord Hope of Craighead, in opening, Amendment 38, tabled by the noble Baroness, Lady Chakrabarti, would remove Clause 5 and disapply Section 55 of the Illegal Migration Act. This would lead to a conflict between the duty to remove, established by the Illegal Migration Act, and the effect of an interim measure issued by the Strasbourg court, which in turn would create uncertainty as to which would prevail. Clause 4 includes a specific provision enabling the United Kingdom courts to grant an interim remedy preventing removal to Rwanda where they are satisfied that a person would face real, imminent and foreseeable risk of serious and irreversible harm. We have designed these measures to ensure that our courts are not out of step with the Strasbourg court.

As I have said already, there is no reason why the United Kingdom courts, which we would expect to be in possession of all the evidence and facts in the case when making such a decision, cannot be relied upon to reach their own decision rather than having regard to another court which may not have the most up-to-date information. I acknowledge that the noble and learned Lord, Lord Hope, is not pressing his amendment, and I ask the noble Lord, Lord Coaker, not to move his amendment.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to noble Lords from all sides of the House, whatever their views may have been, for contributing to this debate. The result has been a much more interesting discussion than I anticipated in my rather brief and somewhat lame introduction to my amendment.

I shall make only one point. My amendment is concerned with the position of our own courts. As Clause 5(3) stands, it prohibits our courts from having any regard to an interim measure when considering an application which relates to a decision to remove someone to Rwanda. The noble Lord, Lord Faulks, is quite right when he says that the current procedures under Rule 39 are suboptimal. There are various defects which we would not accept in our courts, but that does not apply to our procedures. They are perfectly open, proper and thorough. Our judges would be able to take on board all the points that have been made in the course of the discussion and weigh up one way or another whether this measure from the European Court of Human Rights should be given effect to. I am not asking that they should be bound to give effect to it but that they should be permitted to do so. It seems to be a perfectly reasonable thing to ask our courts to do.

I have considered whether I should press this to a vote, but we have to ration ourselves at this stage of our proceedings and have regard to what happens next. If this goes down to the House of Commons, no doubt it will bounce back again and so on. We have to be careful how far we press things to a Division; I would have liked to do so, but at some points one has to exercise self-restraint, which I am doing.

[Lord Anderson of Ipswich (CB)]

Does the noble and learned Lord take comfort, as I do, and perhaps some people watching these proceedings might do, by recalling that on Monday we agreed to an amendment that requires this Bill—this Act, as it will become—to comply with international law when it is implemented?

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[Lord Hope of Craighead (CB)]

That is a perfectly fair point to make; there are other amendments we have passed that carry us a long way indeed, whereas this one is rather more particular. For various reasons, without elaborating further, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Hope of Craighead Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Purvis of Tweed (LD)]

As the Minister confirmed to me, by definition, the safeguards that would make Rwanda safe are not in place, because the Rwandan Government are “working towards” having them in place. Why then are we asked to determine that Rwanda is currently safe when the Minister has said it is not?

[Lord Hope of Craighead (CB)]

My Lords, might I add to that question? Is the noble and learned Lord the Minister not embarrassed by the word “is” in the clause, which I will address in the next group? It is the language of that particular provision that causes embarrassment to the Government. They really need to face up to the significance of using the word “is”.

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Moved by

[Lord Hope of Craighead]

6: Clause 1, page 1, line 12, leave out “is a safe country”, and insert “will be a safe country when, and only 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 subsections 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, I have four amendments in this group: Amendment 6, 14, 20 and 26. They are all part of a single package. They are designed to address, in a slightly different way, the points that have been debated in the two previous groups. In a way, we are on very familiar ground, because we have covered the ground in considerable detail, particularly in the exchanges with the noble and learned Lord, Lord Stewart, at the end of the last group.

I take the Committee directly to the wording of Clause 1(2)(b). 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”.

I am concerned with the word “is”. By way of preamble, I am not speaking entirely for myself in being unduly troubled by the fact that the Government are asking your Lordships to reverse the finding of the UK Supreme Court of 15 November last year. The court 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, as a consequence of refoulement”.

In other words, it was not a safe country as defined for the purposes of the Bill by Clause 1(5).

However, that finding was based on the evidence which was before the court. Indeed, that was evidence which was before the Divisional Court a year before in 2022, as the noble Lord, Lord Murray of Blidworth, reminded us. In a sense, it was talking about material which has moved on. At least, other things have moved on since the facts were gathered together, which was the basis of that finding. It is important to note that the document which was available at that time was not the treaty but the then memorandum of understanding between the two Governments, entered into in April 2022. That had some quite important differences to what we now find in the treaty.

As all judges know, decisions on matters of fact are open to review if there has been a material change of circumstances. I am very far from saying that there has been a sufficient material change to justify a different finding, but in principle, that finding is open to be looked at again if the circumstances change. Certainly, things have moved on since 2022. As I mentioned a moment ago, there is a new treaty. As for Parliament taking upon itself the responsibility of making the judgment referred to in Clause 1(2)(b), I suggest that one has to be quite sanguine about it and just recognise that there are circumstances where judgments can be looked at again. No judge is going to be particularly aggrieved if people suggest that this should be so.

If I was still in the Supreme Court, I would just shrug my shoulders at this and let Parliament carry on and do what it likes, as indeed it can. The President of the Supreme Court, the noble and learned Lord, Lord Reed of Allermuir, is a Member of this House, but unfortunately, he is disqualified by reason of his office from coming to address us. There is a mechanism by which, if he was unduly troubled, he could submit in writing his views for us to take into account. So far as I know, he has not done that, and I am not greatly surprised that he did not think it necessary to do that.

When I said that Parliament can do what it likes—even if, as is plainly the case here, what it is doing is plainly in conflict with our international obligations and therefore deeply regrettable—it must think very carefully about what it is doing. It must be careful in the choice of words. If it is going to take the place of judges who are very careful in their choice of words when they issue their judgments, it must exercise the same degree of care and skill. That is all the more important in view of the way the Bill gives effect to the judgment. It is surrounded by so many barbed-wire fences, all designed to prevent that judgment ever being challenged in any UK court under any circumstances. This means that the judgment your Lordships are being asked to make is crucial to the safety, lives and well-being of everyone, wherever they come from, who are at risk of being removed to Rwanda.

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[Baroness Kennedy of The Shaws (Lab)]

My Lords, the full incoherence and madness of the Bill has just been exemplified in the speech of the noble Lord, Lord Blunkett. The many possibilities here are incredible, such as the idea that asylum seekers may well receive the advice that when they get to Rwanda they should not apply for asylum. What do the Rwandan people do then? We should ask ourselves that question: where do you send them back to? To Britain, whence they came—they are not applying for asylum here—or back to France, our great partner in trying to deal with the crime that is emanating across Europe, with which we need to be collaborative, and need intelligence and serious investigation into criminal gangs?

I was rather attracted by the suggestion of the noble and learned Lord, Lord Hope, that we change the tense and make it about the future: that if Rwanda does become the safe country we are being asked to vote that it is, that we feel it has a legal system capable of making these assessments, and it is properly monitored, and we receive evidence—I have mentioned evidence before—we must be sure of that, and putting it into the future might be rather appealing. The one thing I had concerns about was when the noble and learned Lord said that this would not cause delay. I am hoping that there will be delay.

I do not want to see people being flown to a place in which this great project of modernising and improving the system will take place. If it is going to happen at all, I want it to have happened before we send anybody there. I happen to take the view, unpopular among many, that exporting people and sending them away is part of the problem. We are not doing as Italy’s ultra-radical, proto-fascist leader Ms Meloni is doing, which is asking the Albanians to do on Italy’s behalf what the Italian system would be doing. We are not asking for that; we are sending them there. We are exporting a problem.

I am concerned about the issue of delay and perhaps the noble and learned Lord, Lord Hope, will respond at some stage. I see him getting to his feet; maybe he can help me.

[Lord Hope of Craighead (CB)]

I do not quite understand the point that the noble Baroness is making. When I talked about delays, I meant the delay of implementing the Bill—putting the various people in place for the monitoring to take place. The fact is that the committees I mentioned already exist. The distinction is between that situation and setting up new independent monitoring, which will take time. That is my only point, but of course I appreciate that all the time that is necessary should be taken to be absolutely sure that implementation has been achieved. That is a different question.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I shall first address the remarks of the right reverend Prelate the Bishop of Lincoln. Speaking entirely for myself, nothing I say is intended to cast any aspersions on the state of Rwanda, the suffering that it has gone through or the plight in which it currently finds itself. I found his remarks incredibly moving. The Supreme Court made clear that it was not a lack of good faith that had led Rwanda to be in the position that it is in; it was just that Rwanda did not have a system that could properly deal with the analysis of asylum claims in a way that would be acceptable to the commitments that we as a country have made to asylum seekers.

I agree very strongly with what the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss, said: that Clause 1, in so far as it says that

“Rwanda is a safe country”


is not right, and it would be wrong for us as a Parliament, or as the House of Lords, to agree to that which we know is wrong.

May I address the four alternatives that are now before the House as a means of trying to deal with that? First, the noble and learned Lord, Lord Hope, has proposed that one can give effect to the provisions of the legislation only if the joint committee, set up under Article 16 of the recent Rwanda-UK treaty, says that the agreement is being complied with, and that committee would have to act on the advice of the monitoring committee. In principle, that sounds quite a good idea. As the noble and learned Lord acknowledged, one should recognise—I do not say this in a disparaging way—that the joint committee is just the two Governments.

If it is the joint committee alone, that gives no additional assurance. Because the UK Government want to do this come what may, it is hard to imagine that the Rwandan Government are going to say that they are not complying with a treaty which they say they are complying with and have committed themselves to complying with. If it was only the joint committee under Article 16, that would not provide much protection, I say with some respect.

The amendment proposed by the noble and learned Lord, Lord Hope, says that the joint committee has got to act on the advice of the monitoring committee. Only if the monitoring committee positively advises that the agreement is not being complied with will the joint committee of the two Governments be prevented from giving the advice that it wants to give. I have no idea how this monitoring committee will work. It will presumably be 50:50 on each side. If it is paralysed, I do not know whether the noble and learned Lord’s proposed requirements would then be satisfied. If the joint committee was not getting positive advice one way or the other, it would still be able to give the assurance that one gives. Could that be dealt with by a number of tweaks? It might well be possible.

Subject to those points, I can see attraction in what the noble and learned Lord, Lord Hope, is saying. The only other point I have on his proposal is that the Minister appears to escape any duty at all. Should we not have it so that the Minister is subject to judicial review on the decision he takes about whether to implement the treaty?

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for his comments on the significance of the joint committee. I would introduce it only at the beginning. For the future, it is entirely a matter for the monitoring committee to advise on whether the system is being fully implemented, once it has started up. One could remove the joint committee altogether and just have it rest entirely on the monitoring committee; that would be very close to the position of the noble Lord, Lord Anderson, and indeed that of the noble Lord, Lord Coaker. We are working towards a solution of some kind, but I welcome very much the helpful comments of the noble and learned Lord.

[Lord Falconer of Thoroton (Lab)]

I am grateful. The other proposal, which my noble friend Lord Coaker has put his name to, as well as the noble and learned Lord, Lord Hope, is to get the monitoring committee to decide. Then one of the only wrinkles would be: how does this monitoring committee work? It would require a positive assertion by the monitoring committee that the terms of the agreement are being broken. If the committee cannot get that, for example because it is deadlocked, then this potential Act would be given effect to. That is the second alternative.

The third alternative is the proposal by the noble Lord, Lord Anderson, that there be an independent reviewer. If that reviewer says it is not safe, this potential Act would be given effect to, as I understand it, only if there is a resolution by the House of Commons saying that it is safe. That has some attractions, but I am not attracted to it at the moment. First, the House of Commons has already shown its willingness—not because its Members are dishonourable people but because they are whipped by the Government, who have a significant majority—to pass a Bill that uses the word “is”. Secondly, surely such a resolution has the same vice as the Bill: one is asking Parliament to sit in judgment on the question of whether Rwanda is a safe country, and that is an inappropriate activity for Parliament.

I am in favour of one or other of the proposals of the noble and learned Lord, Lord Hope, in Amendments 15 and 16, or the monitoring committee—subject to my anxiety about how it would work. I strongly submit that we should not let the Minister off the hook; he or she should be subject to judicial review.

Of course, one has great sympathy with what the noble Baroness, Lady Jones of Moulsecoomb, said. However, our attitude—although it sticks in the gullet—nevertheless has to be to try to make this Bill work. My own view is that, if you are going to do offshore processing or deportations to safe countries, the one thing you have to be sure of is that you are acting in accordance with the law.

What makes this Bill so discreditable is not necessarily the policy, which people can disagree with, of offshore processing in third countries, but trying to do something like that in breach of the law. We should be working to get to a point where we are acting in accordance with the law.

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[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who have spoken in this very interesting debate. I am particularly grateful to those who have offered some support to my Amendment 6, which seeks to reword the clause with the word “is” in it, substituting words that are far more in keeping with certainly what I think the majority of the Committee has been discussing throughout the proceedings this afternoon. I am very disappointed with the Minister’s reply, because he simply brushes it aside as not necessary. However, anybody who listened to the debate with care would see that it is absolutely necessary to change the wording of that clause, and we will certainly have to come back to it on Report. As for the various options, we have a menu. I think those of us who have put forward suggestions as to how the matter might be regulated will think carefully as to where we go from here, but we will certainly come back to it on Report.

My only other point is that I was very taken with the point made by the noble Lord, Lord Blunkett, about whether the House of Commons appreciated the significance of offloading people to Rwanda, and particularly those who, when they reach there, do not claim asylum. It is a horrifying situation, with these people just cast adrift in a country which, as the noble Lord, Lord Kerr, said, probably has no connections with what they were looking for—and indeed, they probably had a variety of good reasons for coming to the United Kingdom. It is a deeply disturbing situation and I have no doubt that the noble Lord, Lord Blunkett, will pursue the matter a little further, because it really illustrates the harshness of the measure that we are being asked to consider. Having said all that, I withdraw the amendment.

Amendment 6 withdrawn.

Illegal Migration Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I will speak to Amendment 4, in my name. I appreciate the need to move as fast as possible and I shall be as short as I can. This amendment, which appeared in Committee and is renewed today, would require the Secretary of State to provide

“guidance as to how the provisions of this Act are to be read and given effect in a way that is compatible with the Convention rights”.

The amendment follows a recommendation by the Constitution Committee prompted by the provisions in Clause 1(3), which tells us that

“so far as it is possible to do so, … this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1)”.

Clause 1(5), the crucial subsection, states:

“Section 3 of the Human Rights Act 1998”—


which gives the function of deciding what the convention rights mean for the courts—

“does not apply in relation to provision made by or by virtue of this Act”.

The Committee said that the Government’s position requires explanation. Of course, there are more fundamental objections to these provisions, which are the subject particularly of Amendment 5. I do not want anything I may say in the next few minutes to be taken as undermining in any way the point made by the noble Baroness in favour of her amendment, but the fact remains that the Government’s position on how these provisions are going to work needs to be explained, and no sufficient explanation has been given. Clause 1(5), after all, is a major incursion into the way the convention rights are currently protected. This is a matter of particular concern given the extent to which the Bill affects so many people, including children and the victims of modern slavery, who are extremely vulnerable to government action. As I said last time, they are being sent into a desperate kind of no man’s land where the ordinary protections we enjoy are being denied them.

In replying to this amendment in Committee, the Minister said that my amendment was at odds with Section 6 of the Human Rights Act which, as he put it,

“should be our guiding light here; it affords the necessary clarity for those seeking to give effect to the provisions in the Bill”.—[Official Report, 24/5/23; col. 921.]

I simply did not understand that response and I still do not; indeed, I think it makes the case for guidance of the kind I am talking about all the more strongly. Without going into details, Section 6(1) requires public authorities to act compatibly with the convention rights, while Section 6(2) disapplies it in two circumstances. Yet the fact that the Minister is contemplating disapplication of Section 6(1) suggests to me that he is contemplating that there will be breaches of convention rights flowing from the provisions of the Bill. That seems quite inconsistent with the ECHR memorandum, which says that the clauses it identifies as engaging the convention rights are capable of being applied compatibly.

I am not going to enlarge any further, but it seems to me that that explanation does not make any sense; it is contradictory to the memorandum and it is no answer to the point I was seeking to raise. The fundamental point takes me back to Amendment 5: the short answer to the difficulty created by that explanation is to vote in favour of Amendment 5, which I will do.

Scotland Act 1998: Section 35 Power

Lord Hope of Craighead Excerpts

Wednesday 18th January 2023 Lords Chamber

[Lord Offord of Garvel (Con)]

A number of these matters lie fundamentally in another place and in another department. Right now, the Scotland Office is in a situation where, under the architecture, it is pressing the button on Section 35. The Bill now goes back to the Scottish Government, and discussions need to be had with the relevant UK department on this matter. That will require discussion with the UK Minister for Women and Equalities. My understanding is that these channels are open and that a discussion will be had. As to whether minutes are published, et cetera, I cannot comment on that. I guess that if that is the normal procedure, it will be done. There is no attempt to be anything other than fully transparent on this matter. The Scottish Government are within competency in matters of gender. This issue has come to this House and the other place because there is a knock-on effect on the rest of the United Kingdom in relation to the Equality Act.

[Lord Hope of Craighead (CB)]

My Lords, one of the points that has been made clear by the First Minister is that she wants to take this issue to court. That is a waste of public money, and it is certainly a waste of time. Think of the time it would take to go through the Outer House, the Inner House and then to the Supreme Court—we are talking about something like 18 months before there is a solution. To pick up a phrase from the noble Baroness, Lady Chapman, it is not going to take us anywhere. The solution is to get around the table; I think I am echoing something that the noble Lord, Lord McConnell, has already said. Judging by what the First Minister said last night, I think there is a suspicion that the Government are not acting in good faith. We need a clear declaration from the Minister that the issue the Government take with the Bill is based on thorough research of its effect; there is no question of bad faith here at all. There is an issue to be discussed, but the sooner it can be, the better. Every effort must be made to bring the two parties together so that we can resolve these various very difficult problems.

[Lord Offord of Garvel (Con)]

I thank the noble and learned Lord for his contribution. As a former Supreme Court judge, he knows these matters very well. I completely agree that it would be a waste of public money to go to the courts. In fact, in pressing that button, it was almost as if that was anticipated. Therefore, we need to get around the table and discuss this issue. The UK Government have consulted on this matter, as we have said, over the last two years and believe that the legislation currently provides the right checks and balances. However, the Bill is obviously an attempt to move that legislation forward and therefore should be considered. The Equality and Human Rights Commission has concerns about the Bill, as do many others, and they are on the record. What that says to us is that this is a sensitive issue which requires further consultation.

Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Hope of Craighead Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Hope of Craighead (CB) [V]]

My Lords, I very much welcome this report, and congratulate warmly all those who have contributed to it. As it happens, I was a member of the Liaison Committee when it considered on two occasions whether to recommend this Act for post-legislative scrutiny. On each occasion there were a number of other statutes on our list, and we could recommend only one of them. I was glad that on the second occasion my suggestion that this Act should be put forward for scrutiny was agreed to, and I am very pleased with the result.

One concern that we had on the Liaison Committee was whether UK businesses were being put at a competitive disadvantage by the standards set by this legislation in obtaining foreign contracts, a point made by the noble Lord, Lord Gold. I recall similar concerns being expressed at a conference that I attended in Hong Kong shortly after the Act was brought into force. Corporate hospitality and facilitation payments were mentioned as areas of particular difficulty. I was particularly pleased to read that, of the 100 witnesses from whom the committee received evidence, not one had any major criticisms of the Act, and its structure and the offences that it created were almost universally praised. Comments that were quoted were remarkably positive in their support. I take from all of this that, by and large, the warnings given at the outset—I suspect to try to undermine what this Act stands for—have not been borne out by experience. That is very good news.

I shall comment briefly on what the report has to say about Scotland. Questions of policy are, of course, for the Scottish Ministers. Nevertheless, I welcome that fact that the committee took the trouble to examine the position in Scotland as part of its scrutiny review. I am glad that the committee saw no reason for any change in the law and practice regulating the commencement of proceedings in Scotland. With the exception of private prosecutions, which are very rare, the golden rule in Scotland is that no prosecutions whatever can take place unless in the name or under the authority of the Lord Advocate. I recall having to point this out on several occasions during my time in the Crown Office as an advocate depute, to the great irritation of bodies such as the then Customs and Excise, which were used to handling these matters themselves in England. That is how the law works in Scotland, and it has long been recognised that there is no need to say anything about it in a UK statute.

I see great merit in the recommendation that the Secretary of State for Justice should amend the guidance published under Section 9 of the Act so that it deals adequately with the law and practice in Scotland, and that the websites in use on both sides of the border should be updated so that they each refer to both sets of guidance. As the guidance is for use in all parts of the United Kingdom, it is important that it should take account of the differences in law and practice there. I note, however, that no mention is made of Northern Ireland in this paragraph, nor indeed is Northern Ireland mentioned at all in the Ministry of Justice’s quick start guide. I hope that the Minister will feel able to suggest to the Secretary of State for Justice that he should look at the position in Northern Ireland too when he considers that recommendation.

As for what the committee says about civil settlements in Scotland—the alternative to the deferred prosecution system in England and Wales—I do not wish to take anything away at all from what my noble and learned friend Lord Saville said about this matter in his introduction. However, the differences between those two systems are perhaps less troublesome than the committee seems to have thought in commenting on the Scottish position. Take, for example, the suggestion that judicial supervision should be regarded as a vital element for the conduct of civil settlements in Scotland, which does not happen just now. This takes me back to the golden rule that I mentioned earlier. Another way of putting it is that the Lord Advocate is the “master of the instance” in Scotland; he is not subject to the direction of the courts as to whether a prosecution should be brought, and it is entirely up to him to decide whether or not to settle a case without resorting to prosecution and, if so, on what terms. Scotland does not have sentence bargaining, but agreements about pleas and settlements are within the discretion of the prosecutor. I doubt whether anyone in Scotland would want that system to brought under the supervision of the judges.

As to consistency, the lack of a statutory basis for the scheme does not trouble me, given the way in which these matters are handled by the Crown Office in Scotland, although a statutory basis would be needed for a financial penalty if this was thought appropriate. However, I see merit in the points made by the committee about the ways in which the scheme lacks transparency and the need to improve the quality of the information on the Crown Office website. I am sure that the Lord Advocate will pay close attention to what is said about this in the report.

Finally, I noted the remarks of the noble Lord, Lord Empey, and his concern about the differences that might emerge between the law and practice in Scotland and that in England, Wales and Northern Ireland in how the Act is administered. I doubt very much that that is a matter for real concern. The terms of the statute are perfectly clear and the prosecutors themselves are well aware of the need to maintain consistency throughout the United Kingdom in dealing with these important matters.

Competition Appeal Tribunal (Coronavirus) (Recording and Broadcasting) Order 2020

Lord Hope of Craighead Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, I too support this order—how could I not do so?

As the Minister will recall, I took what was then seen as the revolutionary step of promoting the filming and broadcasting of proceedings in the Scottish courts when I was the Lord President. That was in 1992, no less than 28 years ago. I was helped by the fact that there was then—and I believe still is—no statutory prohibition against these things in Scotland. Therefore, it was entirely up to me to decide whether it should be permitted.

I was just as much in favour of the live broadcasting of proceedings in the Supreme Court when the Law Lords moved there from this House in 2009. The success of that venture can be seen every day when that court is in session by logging on to its website. I recall watching the Minister himself presenting an argument, with his usual skill, on behalf of the Government in the Supreme Court on more than one occasion, and enjoying the way the court responded to what he was saying just as much as he did.

The noble Lord, Lord Pannick, was there on my screen when the court was sitting virtually earlier this week. I hope that the noble and learned Lord and the noble Lord will forgive me for saying that these performances are not among the most entertaining things one can watch online. But there is no doubt as to their educational value, and their value in making court proceedings more accessible to the public. Technology has advanced hugely since my first venture 28 years ago, and so has the acceptability of this use of it among judges as well as the public.

Nevertheless, it took me some time to work out why this order was being made. The Explanatory Notes were not very informative. I wondered whether there was something especially compelling about proceedings in the Competition Appeal Tribunal that made broadcasting them especially desirable. I am grateful to the noble and learned Lord for his explanation, which I had eventually worked out for myself: that the purpose of the order is to fill in a gap left open by the Coronavirus Act 2020, which permitted during the present crisis, when public access to proceedings is severely limited, the recording and broadcasting of proceedings before various courts and tribunals, but not this one. It is obviously right that this tribunal should not be left out.

However, I have two questions for the Minister, which I hope he may be able to answer in writing if he cannot do so now. First, how much use has been made so far of the freedom to record and broadcast that is now available in courts and other tribunals? Secondly, is thought being given to making this relaxation of the prohibitions a permanent feature of the way we make our proceedings available to the public? After all, in most cases room for the public in courts and tribunals is fairly limited, and travel to these courts is restricted. The limits of that freedom have been carefully spelled out in Articles 6 to 8 of this order, following the wording of the Coronavirus Act itself. The interests of justice are preserved, and there really is no risk that the freedom will be abused.

Prisoners (Disclosure of Information About Victims) Bill

Lord Hope of Craighead Excerpts

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

[Baroness Bull (CB)]

My Lords, Amendments 1, 2, 5, 6, 8, 9, 11, 12, 14 and 15, in my name, are in substance the amendments I introduced in Committee. Now as then, I am grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Barker, for supporting them. I am also grateful to the noble Lord, Lord Bradley, who cannot be here today but has great experience in these matters and has written to express his support.

I will speak to the first two amendments, which are repeated, out of necessity, at relevant places in the Bill. The two stand together and make connected points. First, the Parole Board must consider the prisoner’s state of mind and whether for some reason, such as the presence of mental disorder, they cannot form the requisite intention to withhold the information. Secondly, the board must be satisfied that the prisoner has the mental capacity, within the meaning in the Mental Capacity Act 2005, to decide whether to disclose. In moving these amendments, I put on record yet again my support for the principle of this Bill and my admiration for Marie McCourt. I acknowledge the Bill’s importance to grieving families in achieving closure in the most terrible circumstances.

In Committee, the Minister expressed two objections to my amendments. I am very grateful to him for taking time to discuss them in advance of today. His first objection was that my amendments would prevent the Parole Board taking into account any previous occasions on which the offender had had the opportunity to co-operate with the authorities and reveal a victim’s whereabouts, but had refused to do so. He argued that if this offender later became unable to make a disclosure for reasons of deteriorating mental health, for example, my amendment would leave the board unable to consider any prior refusal to co-operate in assessing the risk the prisoner posed to the public in the event of release on licence. The amendments tabled today meet this objection by including the potential for historical consideration.

His second concern is more fundamental and goes to the heart of what I see as the underlying problem with the Bill. Throughout its progress, he has repeated the Government’s view that the board’s discretion to consider all possible reasons for non-disclosure must be unfettered. He contends that my amendments give undue prominence to one factor among the many the board will take into account when making a public protection decision.

But this in effect exactly what the Bill does. It turns consideration of non-disclosure—already a standard practice in parole panels—into a statutory duty. But it fails to create a parallel statutory duty of what must be a fundamental responsibility of the board in coming to its view: to consider whether the prisoner is able, for reasons of mental capacity or disorder, to disclose that information. The Bill therefore comes dangerously close to collapsing together the question of whether there is missing information with that of whether the prisoner should be held responsible for it.

Even if the Bill is not, in law, creating a new criminal offence of non-disclosure, the effect of deliberate non-disclosure is inexorably going to lead to the conclusion that the prisoner poses a risk and, as a result, requires to be kept in prison. Therefore, the Bill is in effect creating a statutory hurdle to release in those cases where deliberate non-disclosure is established. Given this, it should be explicit that that statutory hurdle can exist only where the prisoner can be held responsible for their own actions—that is to say that they are not suffering from a mental disorder or otherwise from impairment of mind or brain that should be seen as alleviating that responsibility.

The noble and learned Lord the Minister has been consistent in arguing that the Parole Board must be allowed to take into account a wide range of factors in making its decisions. But in relation to the Bill, which is so tightly focused on non-disclosure, there are really only three possible scenarios a board would face. The first concerns those cases where disclosure is not possible because the prisoner, for whatever reason, was not party to the disposal of remains and so genuinely does not know where the body is. Of course, there will also be cases where prisoners continue to protest their innocence. This is a problem for the board, but it is not what the Bill is about.

The second scenario concerns the non-disclosure cases where the verdict is not disputed and the facts of the case leave no room for it to be argued that the prisoner does not know where the victim’s body is located. In both those scenarios it is simple. There is either an inability to disclose or there is deliberate non-disclosure, which is culpable. The prisoner who persists in this wilful refusal, amplifying again the distress already visited on the family of the victim, must take the consequences, and in its efforts to address this particular issue, the Bill has my full support.

But it is the third scenario that my amendments address—a scenario on which the Bill is silent. It is the scenario in which the prisoner, for reasons of mental disorder, cannot form the requisite intention to withhold information, or lacks the mental capacity to take the decision to do so. By failing to mention any possibility of the contrary, the Bill assumes that the prisoner has the ability to disclose, thus making any non-disclosure culpable. Prolonged detention for non-disclosure in such cases would be unfair, unjust and a potential infringement of human rights.

By elevating non-disclosure to statutory status, the Bill already departs from the Government’s stated policy of leaving to the Parole Board decisions as to what weight, if any, it gives to the many factors it must consider. The Government have accepted, at the Dispatch Box here and in the other place, that the board should take state of mind and mental capacity into account. But the Bill provides the board with no guidance as to how its statutory duty is to be performed with regard to this. By extension, it fails to guide victims’ families as to what they should expect of the Parole Board in cases of this kind. My amendments would address this discrepancy by elevating in parallel the related imperative to take the ability to disclose into account.

If the Minister is not willing and able to accept these amendments, as I fear he is not, and this guidance is to be dealt with outside the statute, can he at least provide clarity as to what this guidance to the Parole Board is to be, where it is to be found and how its use will be monitored? I would be grateful if he could confirm definitively what training members of the Parole Board receive to support them specifically in making determinations under the Mental Capacity Act 2005. If the board’s responsibility to take mental disorder and mental capacity into account is not to be a statutory duty, it will be vital that its members are fully conversant with the Act and its use within the criminal justice system. I beg to move.

[Lord Hope of Craighead (CB) [V]]

My Lords, I am grateful to the noble Baroness, Lady Bull, for her introduction to this group of amendments, to which I have added my name. I entirely support her careful analysis of the problem they seek to address.

There is no doubt that the Bill has been drafted with the best of intentions, and, as I said when we discussed them in Committee, I completely understand the policy reasons that lie behind it. I have the deepest sympathy for those it seeks to help. We have tended to focus on cases where the failure to disclose has been in murder or manslaughter cases, where the question is where the victim’s remains were disposed of. But cases about the identity of children who are the subject of indecent images are just as distressing to the victims and their families. Our amendments, which are not intended in any way to undermine the Bill’s intentions, extend to both of them. That is because the Bill, as drafted, gives rise to the same problem in both cases. I recall the noble and learned Lord the Minister agreeing with us, in the virtual meeting to which he very kindly invited us, that what matters for the purposes of our discussion is the substance of the issue our amendments raise, not their precise wording. The same cannot be said of the Bill; its precise wording does indeed matter.

It is the wording of the new Sections 28A(1)(c) and 29(1)(c) that create the difficulty. I entirely understand the noble and leaned Lord’s point, which he made in Committee and repeated to us in our meeting, that subsections (2) and (3) of those sections do not limit the matters which the Parole Board must or may take into account, and that he does not want to limit the scope that this leaves to the board. The problem lies in the meaning that is to be given to the words “has information” and “has not disclosed” in subsection (1), which sets the context for the whole exercise. There is a gap here, which the Bill leaves open. Cases of deliberate refusal where the prisoner has the information, is able to disclose it and fails to do so are covered by these words. These are the obvious cases that are so distressing. They can be seen as cases where the prisoner is deliberately prolonging the agony being suffered by the victim’s families and, in the children’s case, by the victims too. Their predicament is horrifying, and it is right that everything should be done to address it. The word “non-disclosure” is absolutely right for use in these cases. It carries with it the notion of intention, as the noble Baroness made very clear. For very good reasons, it was these cases that were in mind when the Bill was being drafted to give statutory force to “Helen’s Law”.

But what about those whom the board believes have or had the information because of the way the crime was committed but, for the reasons given by the noble Baroness, are simply not able to disclose it to the Parole Board because they lack the intention? That is the gap that the Bill leaves open and our amendments seek to fill. It may be said that, as matters stand today, cases of that kind can be dealt with by the Parole Board perfectly well, with all the understanding that they deserve. The Bill assumes that what the board does now must be transformed into a requirement—a statutory duty—and all that this entails. It is designed to change something, not leave things as they are. One can see, by looking at Amendment 17, in the name of the noble Baroness, Lady Kennedy of Cradley, what this may lead to. The context for any judicial review will be set by the terms of the statute. The board needs clarity on this matter.

Sentencing Bill [HL]

Lord Hope of Craighead Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, I am happy to join those who have already spoken in welcoming this Bill and paying tribute to its chief architect, Professor David Ormerod. Like almost everyone else, all I have seen so far is the online version, but that is enough for me to appreciate what a fine piece of work this is.

What impressed me most as I worked through the first 24 pages, which set out the Bill’s contents, is the clarity and simplicity of the layout. Accessibility in a Bill of this kind, which contains so much detail, is the key to its success. It is also the key to the future. The law never stands still; this is especially true of the law about sentencing. This Bill must be able to accommodate changes, as my noble and learned friend Lord Judge has pointed out. It must be a living code. I believe that its designers have done everything possible to achieve that.

In this respect its design can be compared with a consolidating measure with which I was familiar, the Criminal Procedure (Scotland) Act 1995. It began its life as a Bill of 309 clauses and 10 schedules. It has the same kind of layout, so it has been able to accommodate many changes over the past 25 years without losing its shape and accessibility. It now has 450 sections and 12 schedules. The Bill we are discussing today has 420 clauses and 16 schedules, so it has a bit of catching up to do. The important point is that, like the 1995 Act, its design lends itself to a steady enlargement of this kind while remaining accessible and easy to use.

As for the future—as to what happens now, as the noble and learned Lord, Lord Mackay of Clashfern, put it—the responsibility now passes to government. The designers have done all that they could possibly to make the Bill fit for a long life. For that to happen, however, it must now be firmly understood within government that changes to the law on sentencing must always be made only by changing the code which the Bill lays down. We must not resort to their being scattered around in so many different places, as they have been until now.

Another point lies within the responsibility of government. Most of us who want to keep up with the current state of statute law have to go online to the UK statute law database. In the past, the updating of this system has sometimes been rather slow. I should be grateful if the noble and learned Lord the Minister could assure the House that it has and will continue to have the resources it needs for the prompt updating on which so many of us depend.

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

Lord Hope of Craighead Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Pannick (CB) [V]]

My Lords, I agree with the points made so forcefully by the noble and learned Lord, Lord Falconer of Thoroton. My concern about the width of Clause 2 arises from the discussions and conclusions on this Bill in your Lordships’ Constitution Committee, of which I am a member. The noble and learned Lord has already mentioned the relevant paragraphs of our report, HL Paper 55, which we published on 4 May, and perhaps I may add very briefly to what he has said.

The Constitution Committee recognised that many of the international agreements to which Clause 2 would apply are technical in nature, and it recognised that the text of an international agreement cannot easily be changed, or be changed at all, after negotiations have concluded—points emphasised at various stages by the Minister. However, we take the view that that is no justification for allowing the law of this country to be changed by statutory instrument in this context without full parliamentary debate. That is because important policy decisions might arise in this context both on whether to implement an international agreement in domestic law and on the manner in which such an agreement is to be implemented.

International agreements often recognise a discretion for signatory states on a variety of matters, some of them of considerable policy interest and concern. Those policy decisions should be the subject of detailed debate and possible amendment of a Bill on the Floor of the House—or whatever the remote equivalent of the Floor of the House is. Those policy decisions should not be for Ministers to decide by unamendable regulations in relation to which there can be only limited debate.

I emphasise that this is not emergency legislation; it is a proposal from the Government for a permanent shift in power to the Executive. In Committee, the Minister did not make out any case for such a change in the law. If the noble and learned Lord, Lord Falconer, divides the House, he will have my support.

[Lord Hope of Craighead (CB) [V]]

My Lords, the matter has been so fully covered by the speeches already made that I have little to add, other than my full support for what has been said. However, I wish to emphasise three points.

First, the devolution arrangements in this clause have always troubled me. I refer to what I see as a lack of clarity about whether it is the Scottish Ministers or the Secretary of State who will exercise the powers referred to in Clause 2(1) in relation to “implementing” the international agreement on the one hand and “applying” it on the other. This is an indication, surely, that the Bill is seeking to crowd too much into this clause. It would be far better to leave these matters to primary legislation according to the ordinary and well-understood rules as to which legislature is to deal with what, according to what is reserved and what is not.

Secondly, the umbrella phrase “any international agreement”—I stress the word “any”—indicates that it is intended to catch a wide variety of international transactions relating to private international law. At present, leaving aside Lugano, we have no idea of what they might be. It seems likely, however, that they will not be many, but any one of them could be very important and raise issues which should not be left to the exercise of Executive power. The pressure on Parliament if we were to proceed by way of a Public Bill in the ordinary way and not by way of statutory instrument would be quite limited. Therefore, it is hard to see why we have to go down this road at all.

Thirdly, there is no sunset clause in the Bill. I could understand it if it had been intended to deal only with measures that needed to be in force before the end of the implementation period or measures that were otherwise urgent and short term, but, without such a clause, this Bill is entirely open ended. Committing all international agreements to the statutory instrument procedure at Westminster and in the devolved legislatures as a permanent feature of our law, whatever the political situation might be, seems to be highly undesirable.

[Lord Blunkett (Lab) [V]]

My Lords, I speak in support of my noble and learned friend. He will recall that in Committee, when we debated this matter briefly, the noble and learned Lord, Lord Garnier, laid down a challenge. He said that those who are in government are in favour of secondary legislation but, when they are in opposition, they are against it. I think that the case has been made this afternoon very clearly that this is an extension of the way in which Governments apply secondary legislation, and the Constitution Committee and Delegated Powers Committee have reinforced that very strongly.

As a politician—I am not a lawyer, although I am in the company of distinguished lawyers—I am reminded of the kinds of proposals that used to be brought before Labour Party conferences in the 1980s. A number of rather sensible measures—my noble and learned friend mentioned the 1996, 2005 and 2007 measures—are completely undermined by something highly controversial and unnecessary which is thrown in.

We are dealing with this matter in our virtual Parliament and seeking to find a way through. I hope that, as this amendment to delete this clause is pushed to a vote, the Government will think again and be prepared to attend to the major issues, rather than push through an extension of delegated power, including to complementary and associated measures and model laws, as has been described. We could then have wholehearted agreement.

--- Later in debate ---

[Lord Thomas of Gresford [V]]

My Lords, as I said in Committee, it is a matter of important principle that criminal offences must be clearly defined. I pointed to the criminal offences created, without consultation or debate, by way of regulations, in connection with the current lockdown. I pointed to the fact that they had caused confusion between the Prime Minister and his cohorts and virtually the rest of the country. Since I spoke on that matter, these offences are being amended, or new offences are being created, on, it seems, almost a weekly basis.

As my noble friend Lord Marks pointed out in the previous debate, there can be no clarity as to even the topic of a future international agreement, so there is no clear context within which this House can consider the power to create criminal offences in the field of private international law.

Last week, when we came to debate the Agriculture Bill, I was interested to note that precisely this point had been made by the Delegated Powers Committee: that it was against principle for sentences of imprisonment to be imposed by way of regulation. That was part of the original agriculture Bill, which fell at the time of the general election. In the new Agriculture Bill, Defra has withdrawn its position and is no longer asking for the provision of power, by regulation, to create criminal offences punishable by imprisonment. To my mind, this is a very good way of proceeding, and I hope that it spreads to other government departments.

[Lord Hope of Craighead [V]]

My Lords, it is all too easy to think that a sentence of imprisonment for a term of not more than two years, which is what paragraph 1(1)(b) of Schedule 6 by implication permits, is a relatively light matter. It certainly is not. Any conviction for a criminal offence, whatever the sentence that results from it, can have the most serious consequences for the individual; for example, opportunities for travel, employment and obtaining insurance can all be affected. The issue, therefore, is one of principle. It should not be for Ministers to create criminal offences by statutory instrument.

[Lord Thomas of Cwmgiedd [V]]

I will be very brief, as this amendment really has no purpose in the light of the result of the Division.

I too agree that, as a matter of principle, it was wrong to seek to include this power in the Bill. Furthermore, it must be recalled that, in relation to most aspects of private international law and the reciprocal enforcement of orders of other courts, the courts have significant powers by way of committal for contempt or injunctions. It cannot be justified to create and impose criminal offences with sentences of imprisonment in the circumstances of this particular Bill.

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

Lord Hope of Craighead Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I would like to say a few words in support of Amendment 19 and make a brief comment on Amendment 20.

Amendment 19 is an issue of principle, rather than detail. Most of what I want to say has already been said by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd. The only point I add is this: when one is considering imposing a criminal sanction on an individual, you have to have regard to the effect of the sanction on the individual in question. For many people, to have a criminal conviction against them is a major disadvantage in future life, particularly for people seeking further employment who have to provide references to their criminal background, if any. It may also affect travel, particularly in countries which deny travel to people who have criminal convictions. Although it may be easy to say that a sentence of not more than two years is not much to trouble about, it is actually something to trouble a great deal about.

That is why the way in which these offences are created, and the extent to which the wording of the offence can be scrutinised, is so very important. It is not a light matter; it is a matter of great importance to the individual. For that reason, there is an issue of principle, which I think lies behind the noble and learned Lord’s amendment.

I hope that the noble and learned Lord, Lord Falconer, will forgive me for saying that the framing of Amendment 20 creates a rather strange situation for the devolved institutions, and the legislatures in particular. The way in which Clause 2 defines the “appropriate national authority” is simple, so far as England and Wales are concerned, because it is simply the Secretary of State. But when you come to Scotland and to Northern Ireland, there is a choice: in Scotland, it is either the Scottish Ministers or the Secretary of State for Scotland; and in the case of Northern Ireland, it is the Northern Ireland department or the Secretary of State for Northern Ireland.

I raised the point at our first sitting that there is some doubt as to what exactly the function is of each of these two people. Take Scotland as an example. In what situations is it appropriate for Scottish Ministers to act alone, and when is it right for the Secretary of State for Scotland to act alone? If one is contemplating the use of the super-affirmative procedure, that is available only to the Secretary of State, because anything done by Scottish Ministers can only be the subject of an instrument laid before the Scottish Parliament. The same is true for the Northern Ireland department: it cannot use the UK procedure because its instruments have to be laid before the Northern Ireland Assembly.

I make this point in case, by any chance, this amendment is to go further. I am not sure how far the noble and learned Lord wants to do that, but just in case he does, a bit more thought is required as to how exactly one is to relate this amendment to the position in the devolved Administrations. The way I left it at the first sitting was that I would much prefer that the Secretary of State for Scotland was not involved, and that the question of implementation—a devolved matter anyway—was left with Scottish Ministers. But one way or another, the situation will need to be clarified. The presence of this amendment gives me a chance to reiterate my point that there is a lack of clarity in the way that the Bill is framed, as far as the relevant authority is concerned.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendments 19, 20 and 21 are probing amendments tabled by my noble and learned friend Lord Falconer of Thoroton. I welcome the amendments, as we have a chance to debate these important issues again.

As a general rule, I do not like Governments taking Henry VIII powers. It is much better that primary legislation is made or changed, and that both Houses debate and decide on the issue, rather than procedures such as these, which are not a proper substitute, whether they use the affirmative or super-affirmative procedure.

That brings me on to Amendment 19, moved by my noble and learned friend. This is a particularly important amendment as, without it, criminal offences could be extended or amended, and the penalties for offences could be changed. That is unacceptable. I hope all noble Lords will agree that it is a matter for Parliament to decide, and that there is no justification for doing otherwise. I would therefore like to hear from the noble and learned Lord, Lord Keen of Elie, the justification for not accepting the intent of this amendment, if that is the Government’s position this afternoon.

The noble Lord, Lord Thomas of Gresford, made the point that this is no way to make new law and new offences. I very much agree with that. There should be no cases of new offences having penalties agreed without the consent of Parliament, where that would normally be the case. But these powers could be used to circumvent that.

My noble friend Lady Kennedy of Cradley made the point that we have seen very few of these types of agreements in the last 60 years, and that the powers and procedures proposed here do not seem justified in that case. My noble friend also made reference to reports that statutory instruments in this area risk being struck down by the courts. It would be good if the noble and learned Lord, Lord Keen of Elie, could address that point when he responds to this debate shortly.