Investigatory Powers Bill

Lord Lester of Herne Hill Excerpts

Monday 12th September 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, we have a great deal of sympathy with the amendment moved by the noble Baroness, Lady Jones of Moulsecoomb. Indeed, it is a recommendation of some committees that there be a definition of “national security”. However, we believe that the definition in the amendment is too narrow. For example, it refers to,

“force or the threat of force”,

being necessary, but sedition can take many forms, such as propaganda and the sort of activity we have seen ISIS participate in. The phrase,

“the protection of the existence of the nation”,

also seems too narrow. It would be helpful if the Government produced their own definition of “national security”, rather than leaving it completely open. Although we agree in principle with the amendment, we do not agree with its substance.

[Lord Lester of Herne Hill (LD)]

My Lords, without boring the Committee with too much about human rights, I will explain my problem with the amendment, or anything like it. The noble Earl has rightly said on the face of the Bill that he considers it to be compatible with the European Convention on Human Rights, under Section 19 of the Human Rights Act. The problem is that the Human Rights Act says—I am glad to say—that this statute, like any other, must be read and given effect, where possible, in accordance with the convention rights. Article 8 of the convention refers to national security as one of the matters to be weighed in the balance where privacy is being threatened. It is therefore very hard for Parliament to seek to give a definition that puts a gloss upon Article 8 unless it is fairly sure that it would not be struck down as being incompatible with the convention itself. As my noble friend has said, this amendment is too narrow and it would actually be better to leave the matter to be decided under the Human Rights Act—provided that the Government retreat from their foolish position of tearing up that Act and putting something else in its place. Provided they abandon that march of folly, we should leave well alone.

[Lord Brown of Eaton-under-Heywood]

My Lords, I very strongly support what has just been said by the noble Lord, Lord Lester. I respectfully suggest that this is not, as the noble Baroness suggested when she moved the amendment, a government oversight. This is a well-recognised term which, as the noble Lord has pointed out, is enshrined in the European convention. It was the term used, undefined and unrestricted by definition, in RIPA, which this law will effectively replace. It has a necessarily somewhat flexible meaning to cater for a great many situations. The proposal embodied within the amendment as to how it should be defined took me straight back to the celebrated case of A v the Secretary of State 10 years ago. That spelled the end of the Belmarsh internment system, which was then replaced by the control order regime. There were nine judges sitting in the appeal committee of this House. The noble and learned Lord, Lord Hoffmann, was the only one who questioned whether it was permissible, under the convention, to do what was done there. The internment was actually struck down by the great majority of the court—eight members—on grounds of irrationality and discrimination. However, the noble and learned Lord pointed out that what was under consideration was a really draconian power to detain people indefinitely without charge or trial. The great question, as he saw it, was whether, within Article 15 of the European convention, there existed a war or other public emergency threatening the life of the nation. He asked what was meant by threatening the life of the nation, and he suggested it was things like the Armada or, indeed, Nazi Germany in the Second World War; but the existence even of a threat of serious terrorist outrages did not, in his view, constitute such a threat.

The very narrow and restricted definition proposed in this amendment is reminiscent of that. As I say, only the noble and learned Lord, Lord Hoffmann, went down that road to say that the life of the nation was not in fact put at peril even by terrorism. However, that was a draconian power. Of course, I do not seek to devalue the right to privacy, but a right to privacy is not, I respectfully suggest, equivalent to a right not to be, as there, detained indefinitely without charge. An altogether wider view of national security is, I suggest, not merely permissible but imperative within this area of legislation. I oppose this amendment.

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[Lord Lester of Herne Hill]

I hope that I am not out of order in suggesting that the words “economic well-being” are in Article 8 of the convention. That is where they come from. They were put in by British negotiators. They are very wide and do not help very much, but that is where they come from.

[Baroness Jones of Moulsecoomb]

My point is simply that there was a recommendation that it was unnecessarily confusing. Therefore, there must be a reason for putting it in, and I would like to know the reason; that is all.

Investigatory Powers Bill

Lord Lester of Herne Hill Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Rooker (Lab)]

My Lords, listening to the debate as a non-lawyer, I get the impression it is being argued that the legal contribution is supposed to be equal to the ministerial contribution. I reject that utterly. It is the Minister’s job to take the decision. That is where the accountability is at the end of the day—back to Parliament. They are not equal partners in this. The introduction of a judicial role to provide oversight or to ask, “Did you really mean that?” or, “Are you sure you’ve got this quite right?” is not the same as giving equal partnership in the making of decisions; that is not what is intended. Yet the whole thrust of what I have been listening to today is about making them equal. I hope the Government will firmly reject that.

[Lord Lester of Herne Hill (LD)]

My Lords, I had not intended to speak until I had listened to the debate, especially what was said by the noble Lord, Lord Tebbit. During the 50-odd years that I have been at the Bar, one the great developments has been that of public law. When I began at the Bar, there was virtually no judicial interference in or control of ministerial decisions. One of the great developments brought about by judges and judges alone has been the notion that, although Ministers take decisions, they must do so in accordance with the rule of law. Judges are extremely careful to make sure that they do not decide the merits of cases that should be decided by Ministers, but they also say that, although Ministers take decisions, they must do so in accordance with the principles of legal certainty, reasonableness and proportionality. Over the years, a partnership has developed between the judicial branch of government and Ministers and Parliament. I agree with my noble friend Lord Carlile that the principles of judicial review are sufficiently flexible and practical to provide adequate safeguards against abuse. I do not believe that judges in any way usurp the functions of the Executive, nor do I believe that they should. I know of no case in which our judges have done so. For those reasons, I hope I have reassured at least the noble Lord, Lord Tebbit, that there is no undue usurpation of the role of Governments or Ministers, nor is any intended.

[Lord Murphy of Torfaen (Lab)]

The whole purpose of this legislation, whether we agree with it or not, is that there should be a double lock. When I was signing warrants for intercept, it was left to me entirely as Secretary of State. There was no involvement of the judiciary or anybody else, other than the security services providing you with a great deal of information on why you should take a particular decision. The principle behind the Bill is that a judge should look at and review the decision of the Secretary of State. The argument both in the Joint Committee and in the other place has been about whether the judge should take into account necessity and proportionality—which would have been taken into account by the Secretary of State in taking the decision in the first place—in the same way as the Secretary of State, or whether they should look at it simply through the eyes of a judge.

One of the most interesting sessions of the Joint Committee was in the Committee Room upstairs where we interviewed a judge from New Zealand—it was 5.10 am when the judge very happily came to address the committee. That is obviously a very different sort of country. With a couple of million people, they obviously do not have the same number of warrants to deal with as we do in this country. It seemed, however, from what the New Zealand judge was saying, that there was a happy relationship between him and the appropriate government Minister in New Zealand, in that when they looked at a warrant, they did so with the same eyes.

The noble Lord, Lord Carlile, is saying that if you take into account modern judicial review principles, you also take into account proportionality and necessity. But that has to be made clear. I understand that the Government made some changes in the other place with regard to this matter, but the precise role of the judge needs to be made clear. Does he or she look at a warrant simply as a judge or as a human being, and is it in the same way as the Secretary of State does?

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[Lord Keen of Elie]

The noble Lord is, I believe, entirely correct. The sequence will be that the Secretary of State will approve the warrant, the matter will be brought to the attention of the Prime Minister, who will then address it, and only after that will it go to the judicial commissioner, who will then apply his review process to the determination that has been made.

[Lord Lester of Herne Hill]

My Lords, I wonder whether, just for the sake of completeness, I could get an assurance about this. On the first day in Committee the noble Earl, Lord Howe, with his customary courtesy, moderation and generosity, said that the Government would think again about Clause 2 and what I had said about its compatibility with the convention. I fully understand the Government’s reasons for the amendments now in this group, but they are of course parasitic on what is now in Clause 2, so I very much hope that Clause 2 will be improved before the Bill goes much further.

[Lord Keen of Elie]

I note the noble Lord’s observations. I cannot elaborate on the observations made by the noble Earl in response to his question, nor can I necessarily meet the manner in which he responded to him.

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[Lord Carlile of Berriew (LD)]

My Lords, I support the noble Lord, Lord Pannick, in these amendments. I agree with him entirely that LPP is a very important right that is key to the application of the rule of law.

It seems to me that there are two iniquities that form a legitimate target for the interception of communications between lawyers and their clients. The first is where the lawyer is committing a criminal act, which already removes LPP in any event; it does not need any additional provision to declare that.

The second more difficult iniquity, which was adverted to by the noble Lord, is where the lawyer is the innocent instrument of a criminal act. I know that your Lordships’ House does not like anecdotes, particularly not from Members who are lawyers, but may I be permitted a very brief one, which was referred to by the noble Lord, to whom I told it in the car park a couple of nights ago? I defended a man who was arrested, properly, for stealing quite a large amount of explosive from a quarry store somewhere near Blaenau Ffestiniog in north Wales. He had quite an experienced solicitor from Dolgellau who later spent many years as a distinguished Member of another place. He was the duty solicitor who went to see the suspect in the police station—this was before computers. The suspect wrote out a message, which looked perfectly innocent, and asked him to pass it to the suspect’s girlfriend. The solicitor went back to his office, telephoned the girlfriend and passed on the message.

At 2 am the following morning the Metropolitan Police arrived at the suspect’s flat in the East End of London to raid it and take away all evidential material that they could find. There was not much. The carpets, rugs and wall hangings had been removed, as had every cup, saucer, knife and fork. The place had been deep cleaned, complete with disinfectant, and there was no evidence to be found. It is a good example, and a real one, of the way in which a solicitor acting innocently was an instrument of iniquity. It was valuable to the defendant because there was an issue about why he was stealing explosives, and really he could say what he wished when it came to his guilty plea for stealing the explosives because there was no contrary evidence. So it is obvious that, within clear limits, that iniquity should be dealt with.

I turn to the contentious powers, the third category dealt with by the noble Lord, Lord Pannick. I say to your Lordships, particularly to the Minister, that this raises difficult ethical issues for lawyers. Lawyers are entitled to know the answers to these ethical problems if the interception of communications between lawyers and their clients is to be permitted when the first two categories do not apply. I happen to have an office that overlooks a convenient garden square, which has a number of comfortable benches in it—a very attractive place to have a consultation with one’s client on a sunny summer morning or afternoon. However, will I be acting properly as a lawyer if I say to my client, “I think we should go out and have our consultation on the bench out there. There’s a risk that what we discuss while sitting in this very pleasant office will be intercepted, since they can do that and we have no idea whether or not they’re going to, so let’s take the safe course and go and sit on the park bench”? Is that an ethical approach from a lawyer or not? We are entitled to know how the profession should conduct itself.

I would go further than that ethical dilemma. What we are talking about is a balancing exercise. There may be a very small number of cases in which the answer to the question from the noble Lord, Lord Pannick, would be, “Yes, we did obtain some material which was of some use in a case or two over the years”, but, on balance, that will arise extremely rarely. Listening to communications between lawyers and their clients—a thankless task, almost by definition—is most unlikely on many occasions to reveal evidence useful to the authorities. Of course, they have many other ways of obtaining evidence.

I urge the Government to be extremely cautious about this. I urge them to listen not only to the considered views of the noble Lord, but to the carefully prepared and briefed views of the various organisations which have been referred to, including the Bar Council and the Law Society, and not to introduce a third type of non-existent iniquity just for the sake of convenience on the odd occasion that might arise.

[Lord Lester of Herne Hill]

My Lords, I can be remarkably brief—for a barrister. The answer to the question from the noble Lord, Lord Pannick, was given by Mr Justice Felix Frankfurter in a famous phrase in a case many years ago where he said that one should not burn the house down to roast the pig. As the Bill stands, this is exactly the problem. Taking a power of this breadth risks burning the house down to roast the pig.

I do not have the ethical problem referred to by the noble Lord, Lord Carlile of Berriew. Of course he should go and sit in the park in order to prevent the Orwellian nightmare of being snooped upon. That is perfectly ethical, but it would be outrageous if we, as members of the legal profession in Scotland, Northern Ireland, Wales or England, had to take that kind of precaution because of the hypothetical chilling effect of thinking that we were under surveillance.

I do not think it is necessary to take this power and I look forward to listening to the hypothetical or real examples that might be given to seek to justify where we now are. I thoroughly support this Bill, so I hope that the Government will give way on this because at the moment they are in an unattractive position.

[Viscount Hailsham]

My Lords, I want to address Amendment 48 in a few words. I find myself uncomfortably caught between the issues raised by the Bill as drafted and Amendment 48. I agree very much with the criticism of the Bill that has been articulated by the three noble Lords who have already spoken. The test in the Bill as drafted is subjective, very wide and likely to have some of the undesirable consequences identified by the noble Lords. I also think that the amendment is, curiously, too narrow. As I interpret it, it requires compelling evidence of a criminal purpose.

A long time ago, when I was in the Home Office, I had responsibility for one of the prevention of terrorism Bills which was going through the House of Commons. One of the issues we had to consider in Committee was very similar to the point made by the noble Lord, Lord Carlile. What happens when a lawyer receives, through the legal process of discovery, information which is capable of supporting terrorism? We decided as a matter of principle that that information would not be disclosed to the defending lawyer because of the risk of transmission to the client, who might use it for the purposes of terrorism.

I am therefore concerned that while the Bill as drafted is too broad, the amendment is too narrow. It does not capture the situation when an innocent communicator can communicate to a client, who may be a terrorist, information which that person can use for an act of terrorism. I am glad to hear that this is a probing amendment, which has been accurately advanced, and that the Government are minded to be responsive to the anxieties expressed. I hope that the Minister will keep in mind my own anxiety, that while Amendment 48 has a great deal of merit, it is too narrow, while the Bill as drafted is too broad.

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[Lord Keen of Elie]

Let me say this: the matter is not speculative and it is not theoretical, as the noble Lord concedes. I am not aware of any example of this having happened in the past 16 years, but that does not render it speculative. The point is that the example that can be given—the example I gave—is one that could arise in the future. The question then is whether the agencies should have a means to secure that vital intelligence or face a complete brick wall. In this context, we would simply say this. In response to the point made by the noble Lord, Lord Pannick, over the past 16 years, there is no evidence of damage to the rule of law and no evidence of any intrusion on the ability of lawyers to say that their legal advice is confidential because it is appreciated that this is a wholly exceptional power.

[Lord Lester of Herne Hill]

If we assume that the Committee is with the Minister in saying that a wholly exceptional power that has never been used should now be given new parliamentary authority in this Bill, the next question to ask is: what about the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood? He said that there need to be adequate safeguards against abuse and suggested that the adequate safeguard would be that the judicial commissioner should look at the merits of the matter. Perhaps I may remind the noble and learned Lord of a case in the mid-1970s, Klass and others v Federal Republic of Germany, when the Strasbourg court said of surveillance powers that there must be adequate safeguards against abuse. It would help me to know what the adequate safeguards against abuse really would amount to.

[Lord Keen of Elie]

I am obliged to the noble Lord and I am coming to the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am not entirely unfamiliar with the case of Klass, and I thank the noble Lord for drawing it to our attention. We recognise that if this exceptional power is to be maintained in the Bill as it is in existing legislation, and if the safeguards in the existing code are to be improved, we must address that very clearly. That is why I have had ongoing discussions with the Bar Councils, the Scottish Bar and the Law Societies to try to achieve some consensus on this point. I therefore welcome the amendment because we are still considering the issue and we recognise the need to ensure that such an exceptional power is properly safeguarded. As to the actual means, we have not come to a final conclusion, but I note the suggestion of the noble and learned Lord, Lord Brown, and I am conscious that that might be one approach. However, I cannot commit us to any single approach at this time. I underline expressly that this power would only ever be employed in exceptional circumstances.

I rather think we are circling the same point. Of course the Government recognise the concerns that people have with regard to legal professional privilege. We understand the critical nature of that privilege and that any intrusion on it calls into question its effectiveness in the context of the rule of law. I go back to the point made by the noble Lord, Lord Carlile, that a balance must be struck here, but if there is a balance, there has to be something on each side. The question now is what we can put in place on our side.

Investigatory Powers Bill

Lord Lester of Herne Hill Excerpts

Monday 11th July 2016 Lords Chamber

[Viscount Hailsham (Con)]

I reinforce what the noble Baroness has said with regard to Clause 2(4). The first line—

“The other considerations, may, in particular, include”—

means in effect that the criteria and considerations set out are open-ended. While the public authority may have regard to any of the considerations set out in Clause 2(4), it can also have regard to any other considerations that it deems fit. That seems a very unsatisfactory state of affairs.

[Lord Lester of Herne Hill (LD)]

My Lords, I put my name to a couple of these amendments and I would like to speak to them. Under our constitutional arrangements, the Human Rights Act is the next best thing that we have to a constitutional guarantee of fundamental rights and freedoms. The Minister has rightly put his name on the front of the Bill, stating that in his opinion it is compatible with the convention rights. I have put my name to these amendments to seek to make sure that what the Minister has put on the face of the Bill becomes transparently clear in the statute when it is enacted.

Article 8 of the convention, which guarantees the right to personal privacy, indicates that any exception must be provided by law—that is to say, satisfy legal certainty—and by the principle of proportionality, and that any interference must be necessary and no more than necessary to safeguard other compelling public interests. The problem with the Bill as drafted is that it does not go quite far enough to ensure full compliance with the Human Rights Act and with Article 8 of the convention. That is why the amendments in the name of my noble friend Lady Hamwee are needed, in my view. First, it is important not merely to have regard to but to make sure that there is full compliance with the principle of proportionality. That is what these amendments seek. Secondly, without repeating what has already been said, it is very important that the obligations on public authorities—for example, not to use the powers listed in Clause (2)(1)—are no more than what,

“could reasonably be achieved by other less intrusive means”.

That is classic principle-of-proportionality language.

I very much hope that in one way or another the Government will come to accept these amendments or something very similar to them so that we can make sure that lawyers like me are not able to go to court to challenge all of this under the Human Rights Act, but that Parliament gets the statute clear to put beyond doubt the application of the principles of legal certainty and proportionality, which is what these amendments are designed to do.

I will say just a word about Amendment 14, not because I want to make an elaborate statement about it but because, as I said at Second Reading, it is very important that we have a board or commission with the requisite powers. I will come to that in later debates on the Bill.

[Lord Strasburger (LD)]

My Lords, I will speak briefly to Amendment 14. We have already heard at length that, in its report on the Bill, the ISC called for a “backbone” of privacy to be inserted into it. The Home Office’s initial response was to add one word to the next version of the Bill: it inserted “privacy” into the title of Part 1 so that “General protections” became “General privacy protections”—nothing else changed. Later, under some pressure in the Commons, Clause 2 came into being, which goes some way, but not all the way, to inserting the privacy protections that we on this side of the Committee feel are needed.

This episode suggests to me that no one in the Government has a brief to speak up for privacy and civil liberties when legislation is being formulated. Presumably, that is why the Home Secretary included Section 46 in the Counter-Terrorism and Security Act 2015, giving her the power to establish the Privacy and Civil Liberties Board. The only problem is that she has not commenced this power and the vacuum in privacy protection advocacy in government is still there.

Amendment 14 would force the Home Secretary’s hand so that she must get on with it—actually, to be more precise, her successor must get on with it because she probably has bigger fish to fry as of Wednesday. For now, this is simply a probing amendment. If it were brought back on Report, it would probably need some improvement in terms of the board’s scope and powers. The American version of this, the Privacy and Civil Liberties Oversight Board, has been very successful with a much wider brief. For now, I will be content to hear the Government’s response to the amendment as it stands.

Before I sit down, I will say a couple of words regarding the friendly fire that has been coming from behind me during this debate—rather ungraciously, I might say—from the noble Lord, Lord Carlile. He queried whether I had read Nineteen Eighty-Four and knew about its description of CCTV in every bedroom. I have, actually, but I suspect that he has not been doing his reading on security matters because, if he had, he would know about Project Optic Nerve, in which GCHQ intercepted 1 million Yahoo! users’ webcams, which effectively put state cameras into 1 million bedrooms.

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[Earl Howe]

I am grateful to the noble Lord for seeding that thought in my mind and I am glad to take it away and consider it between now and Report.

Amendment 7 also relates to Clause 2, which provides a statutory requirement that public authorities must consider all three of the privacy duties listed in subsection (2). It is not an exclusive list—there are other important principles that public authorities will have regard to—but it does make clear the principles that sit at the heart of this Bill and that underpin the exercise of functions under the Bill. And it is of course the case that the judicial commissioner will look to see whether these principles have been satisfied—when, for example, he or she reviews a Secretary of State’s decision to issue a warrant.

The noble Baroness expressed some concern about the phrase “have regard to”. In bringing forward the privacy clause, the Government responded to concerns raised by the Intelligence and Security Committee of Parliament as well as by the Opposition and the Scottish National Party in the other place. The language of “have regard to” is drawn from amendments tabled by the Opposition and the SNP in Committee. It reflects the language of Clause 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which was held up by those parties in Committee as an exemplar of how such a clause might operate. That is the basis on which we have included that particular form of words. In short, while I am sympathetic to the concern raised in this area—

[Lord Lester of Herne Hill]

I am grateful to the noble Earl. Those precedents do not amount to what is really needed, which is full compliance with Article 8 of the convention and the Human Rights Act. In my opinion—it is no more than my opinion—the words do not satisfy that, whatever the precedents relied on may be in amendments tabled in other Bills. It is no use saying “have regard to”; it is necessary to ensure that what is in A, B and C happens in practice. “Have regard to” is rubbery and illusive and will not pass muster under the Human Rights Act or the convention, in my opinion.

[Earl Howe]

My Lords, I can do no other than have particular regard to the noble Lord’s advice. I shall gladly reflect on what he has said. It is a rash Minister who does not take account of advice from the noble Lord.

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David Anderson has welcomed this approach, which we consider the best way of ensuring that his vital role is properly supported. I was grateful to the noble Lord, Lord Carlile, for what he said in relation to this amendment, which we consider to be unnecessary as its purpose has been achieved by other means. I respectfully invite the noble Baroness not to press it.

[Lord Lester of Herne Hill]

I promise not to speak again on any amendments until we reach those covering legal professional privilege, as I do not intend to be even more of a human rights bore than I am at the moment. However, before the Minister sits down, since he has the great advantage of not being a lawyer, may I explain why the Government need to think again about the language that is being used currently?

The problem is that any mismatch between the wording of the Bill and the convention or the Human Rights Act would lead, necessarily, to a legal challenge, which would go probably all the way to the Supreme Court. At the end of the day, the court will say that it cannot do much about it, because the Act is clear, but that it will give a declaration of incompatibility. That will then cause the Government of the day to have to decide what to do about the language—whether they amend it or let it go to Strasbourg.

I want to avoid all that. Every time I see something in the Bill that seems to me to be a mismatch—for example the part which suggests that there are other unspecified relevant circumstances, which seems to violate the principle of legal certainty—I think, “Oh dear, this is going to lead to litigation and to a challenge”. I am begging the Government to make absolutely sure that the language of the Bill as it leaves this House cannot be challenged as being a mismatch with the European convention and the Human Rights Act.

The problem with the Human Rights Act is that it allows those challenges, quite rightly, to be made, along with declarations of incompatibility. That is why I really hope, when the Bill comes to Report, we can have language which, if not identical to these amendments, will achieve that objective.

[Earl Howe]

My Lords, I am grateful to the noble Lord for expressing his expert opinion so clearly. I can undertake only to study carefully what he has said between now and Report. Clearly, the Bill has been drafted by expert hands, but I am the first to say that there is no monopoly of wisdom on the Government’s side, and I am sure we need to taker full account of what he said.

Immigration Bill

Lord Lester of Herne Hill Excerpts

Tuesday 26th April 2016 Lords Chamber

[Lord Rosser]

While it is welcome that the Government now acknowledge that long-term detention without judicial oversight is unacceptable in relation to considering bail, the amendment moved by the noble Lord, Lord Ramsbotham, relates to required judicial oversight of whether a person should continue to be detained at all beyond 28 days, related to whether the exceptional circumstances of the case require extended detention.

We have a commitment to end indefinite detention in the immigration system. The independent Shaw review into the welfare of vulnerable persons in detention also called for action to end excessive detention. This amendment provides for a presumptive limit on immigration detention of 28 days and requires the Secretary of State to gain judicial approval for any extension beyond that period, which would be permitted only if exceptional circumstances had been shown. I certainly do not wish to reiterate all the arguments that have been made, and I take on board the points made in earlier interventions about keeping it brief, so I shall just say that we shall be voting for the amendment moved by the noble Lord, Lord Ramsbotham.

On Motion D1, as the Minister said, last week the Government announced plans to introduce a 72-hour limit on the detention of pregnant women, extendable to one week with ministerial approval, and a government amendment to provide for this was agreed in the Commons yesterday. That amendment was not in line with the findings of the Government’s independent review by Stephen Shaw into the welfare in detention of vulnerable persons, which found that the presumptive exclusion of pregnant women from detention should be replaced with absolute exclusion. Shaw concluded that immigration detention poses clear health risks to pregnant women and their unborn children and that it is being used more widely than in the “exceptional circumstances” outlined in Home Office guidance.

The amendment moved by my noble friend in the light of the Government’s resistance to an absolute ban has the support of various interested groups on the basis that it is the best that might currently be achievable. However, an absolute ban on the detention of pregnant women remains our objective, and we will seek to deliver it at the first available opportunity, a stance that has the full backing and support of my noble friend Lady Lister of Burtersett.

[Lord Lester of Herne Hill (LD)]

My Lords, will the Minister clarify for my benefit a matter which concerns me? Does he agree that the writ of habeas corpus referred to by the noble Lord, Lord Ramsbotham, would not be of any use in the circumstances that we are discussing because the return to the writ would simply show that there was lawful authority for the detention? If that is right, does he agree that the right to liberty could be relied upon only by reference to the Human Rights Act and Article 5 of the European Convention on Human Rights, which would mean that any statutory provision that we approve would have to be read and given effect in accordance with the convention right to liberty?

[Lord Keen of Elie]

My Lords, on the last point, in respect of any answer to a writ of habeas corpus it would be possible to rely upon lawful detention, but the relevant lawful provision would have to be in compliance with the convention.

I turn to notice, a point that was made by the noble Lord, Lord Pannick, when he was referring to the matter of bail. He spoke of the default position. That is very important. It is a matter that was pointedly not addressed by the noble Lord, Lord Ramsbotham, who said repeatedly that it was only after six months that there would be any judicial oversight of detention in the context of immigration. That is not the case. Once a person is detained, it is open to them to make an application for bail. That application is made to a judicial tribunal and will therefore be the subject of judicial determination. The onus will rest very firmly, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, made clear, upon the Home Secretary to justify the detention or continued detention in those circumstances. So it is not a question of judicial oversight arising only after six months: it is available from the outset. What we are providing for is the exceptional case in which an application is not made or is refused and, after a delay of time, should be reviewed.

Armed Forces Front-line Combat Roles: Women

Lord Lester of Herne Hill Excerpts

Tuesday 6th May 2014 Lords Chamber

[Lord Astor of Hever]

My Lords, in 2002 there was a review that took approximately two years. There was another review in 2010. The conclusions of both were mixed. As a result, Ministers concluded that a precautionary approach was still necessary and the exclusion of women was retained. It might be helpful to the House if I were to write to the noble Baroness and other noble Lords who are interested, giving a link to the Written Statements made in November 2010 and setting out the full report of the review and the information and research that was carried out.

[Lord Lester of Herne Hill (LD)]

My Lords, great progress has been made in the Armed Forces in dealing, for example, with homosexuality or pregnancy discrimination and other matters of that kind. Will the Government, in considering whether to bring forward the review, bear in mind a case in which I appear, Johnston v Chief Constable of the Royal Ulster Constabulary, in which it became clear that women already are performing vital undercover works of a combative nature, facing real danger, and are at least as important in the work that they are doing as their male colleagues?

[Lord Astor of Hever]

My Lords, my noble friend makes an important point. As I say, we are reviewing seriously a date earlier than November 2018. I can say to my noble friend that the Ministry of Defence remains fully committed to treating everyone fairly and properly, whatever their gender, ethnicity or other characteristic. We will continue working to eliminate any form of discrimination.