Immigration: Detention

Lord Lloyd of Berwick Excerpts

Thursday 26th March 2015 Lords Chamber

Asked by

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government what is their assessment of the Report of the Inquiry into the Use of Immigration Detention in the United Kingdom, published on 3 March.

[Lord Lloyd of Berwick (CB) (Valedictory Speech)]

My Lords, I will speak first to the subject matter of the debate since I was a member of the group which produced this report.

The basic legal principle is not in doubt: executive detention is lawful if, but only if, there is a realistic prospect of removing the detainee within a reasonable time. When we debated the Immigration Act this time last year, my noble friend Lady Williams of Crosby, who I am more than glad to see in her place, moved an amendment which would have limited the period to 60 days. The noble Lord, Lord Taylor of Holbeach, resisted the amendment on the ground that the principle is well established, with which, of course, I wholly agree.

However, the noble Lord went on to argue that the application of that principle should and could be left safely in the hands of the judges. I would normally welcome that argument with open arms but in this particular instance I am afraid to say that the judges have let us down. For example, in one case, an offender was detained pending his deportation to Somalia. He was eventually released but only after he had been detained for three years and five months. On no possible view could that be regarded as reasonable, yet his claim failed. I refer to some of these cases at page 18 of the report.

We are the only country in Europe which allows indefinite detention of this kind. In France, the maximum period is 45 days. In Spain, it is two months and in Italy it is three months, so we are way out of line with these countries. In the end, the group came to the view that we should have a maximum limit of 28 days. In coming to that view, we were much influenced by the corrosive effect which prolonged uncertainty has on the detainees themselves. There was much evidence to that effect, both from the detainees and the experts. I therefore hope that we will be hearing from others taking part in the debate about the reasons why we took that view.

Meanwhile, I must turn to my so-called valedictory speech, which I prefer to call my swan-song. I have been incredibly lucky to have what amounts to a second career in this House after I retired as a Law Lord in 1999. I have made many, many friends among Members and the staff. I particularly thank those members of staff to whom I come most frequently—namely, those in the Public Bill Office and the Printed Paper Office. I am sure that they will know to whom I am referring. I regard them as great friends and will miss them very greatly.

However, the fact is that I shall be 86 in May and feel that it is time to go, if only because I am beginning, I have to say, to feel my age. Not only that but I am also afraid that my age is beginning to show. I know that because whenever I get on to an underground train, if it is at all crowded, I find that men and women of all ages offer me their seats. That would be a good test for us all to apply.

When we were all much younger, there was a very popular musical called, “Salad Days”, which I hope some of your Lordships will remember. In it there was a rather sentimental song. Unless your Lordships insist, I will not sing it, but the refrain was:

“I’ll remind you to remind me we said we wouldn’t look back”.

When the time comes, one does look back, of course. It is the natural thing to do, and that is what I propose to do, with your Lordships’ consent.

I made my maiden speech in 1993 but did not, as the police say, come to notice until 2005. I was strongly opposed to the abolition of the Lord Chancellor. Your Lordships will remember how it happened. The Lord Chancellor was abolished by a fait accompli in a press release from 10 Downing Street. But at the end of the Second Reading, I moved an amendment—it has to be said, with the encouragement of the noble Lord, Lord Strathclyde—to refer the Bill to a Select Committee, which then happened. It was, of course, very soon discovered that the Lord Chancellor simply could not be abolished. He is far too deeply embedded in our history and constitution. Instead, the title of the Bill was changed and the Lord Chancellor was to be modified. That was a piece of luck because it enabled me to argue that the modified Lord Chancellor should continue to be a Member of this House and have some experience of the law. Those amendments were carried easily in this House but, unfortunately, late one night, they were defeated on ping-pong—and so we are now where we are.

My next appearance was as chairman of the Select Committee on the Speakership of the House of Lords. We were lucky to have as our clerk an up-and-coming young man who is now the Clerk of the Parliaments. He kept us straight as to the meaning of self-regulation, and I owe him a lot. We started our discussions a long way apart but, as often happens in these cases—indeed, as I pointed out during my speech—we slowly inched closer together. That is what we did, and we produced a report that I think one can say has stood the test of time.

I have already mentioned new friends that I have made while I have been a Member of the House. There is one friend in particular whom I would like to mention. He was one of the most remarkable men that I have ever known. His name was Lord Morris of Manchester, better known as Alf.

Our friendship came about in this way: I had presided in this House in a case which concerned the meaning of the noble Lord’s great pioneering Act, the Chronically Sick and Disabled Persons Act 1970. I called that Act a “noble aspiration”. When Lord Morris made his maiden speech in this House, he quoted those words. I was listening as he did so, so one thing led to another and we became friends.

At that time, Lord Morris was much concerned with the fate of returning veterans from the first Iraq war, suffering, as we all now know, from Gulf War syndrome. The Government had refused to hold an independent inquiry, so he did the unusual thing of holding his own independent inquiry of which he asked me to be the chairman, which I said I would.

We listened to a great deal of evidence, including from the noble and gallant Lord, Lord Craig, whom I am also glad to see sitting in his seat, and from the veterans and all sorts of experts. We were not at that time able to identify the cause of Gulf War syndrome, but we at least established that it existed, which the Government had up till then refused to acknowledge. We also pointed out that the veterans had been very badly treated. For that, we also secured for them an apology, but that was all.

I come to terrorism, with which I shall deal briefly because it is controversial. This has been my subject for 20 years. As it is controversial, I will provide just a few facts, which I know your Lordships know. Currently, there are 2.5 million Muslims in this country who are as loyal and law-abiding as we are, but there are some 100,000 Muslims who are inclined to a greater or lesser extent towards the terrorist cause. Our task, as I see it, is to win them over and keep them to our way of life and our way of thinking. This will take a very long time, probably a generation, as was the case with Irish terrorism. In the mean time, whatever we do, we must not alienate those 100,000 Muslims. We must try to keep them on our side.

And so I come to my last stopping-off point—just in time—which brings me back very close to where we started. I refer to the prisoners who are currently serving indeterminate sentences for the protection of the public. I have often given your Lordships the facts, but I will do so for one last time. There are currently 5,000 prisoners serving IPP sentences, a form of sentence which was abolished in 2012. I am concerned with only 650 of them, who are serving tariffs of less than two years which they were given more than eight years ago. About a third of them have been assessed as being unlikely to reoffend. Of the 650, eight were sentenced to a tariff of less than three months; 22 to less than six months; 27 to less than nine months; yet they are all still in prison.

Mr Grayling was given a power in 2012 to change the release test for those prisoners so as to secure their early release, but he has declined to exercise that power. I have received many letters from those prisoners because they know that I am their champion and I have met members of their families. They have no means of knowing, even now, when, if ever, they will be released.

If I were allowed one last wish at the end of my swan-song, it would be that all seven of the political parties should enter into manifesto commitments that will meet those people’s needs as soon as the new Government are elected. They should do so if only on the grounds that it will save £40 million a year, but I hope that they would do so on grounds of simple humanity. These prisoners have suffered a grave injustice, and it is high time that we came to their rescue.

Immigration: Regulations

Lord Lloyd of Berwick Excerpts

Wednesday 11th March 2015 Lords Chamber

[Lord Bates]

There is rightly support available for people who are in severe states of destitution. There are differing levels for those who are seeking asylum and for those whose asylum cases have been refused. These amounts are kept under review. There are additional facilities to provide accommodation, to help with food and access to legal and health care. These are all very important and we need to continue with them.

[Lord Lloyd of Berwick (CB)]

My Lords, when this point was raised last week, the noble Lord indicated that he might be willing to meet some of us who took part in that APPG. Could we not meet him so that we can discuss our real concerns about that report?

[Lord Bates]

The noble and learned Lord is right. We need a few days to get that in place but, on Tuesday 17 March, a notice will go out through the all-party Whip for all interested Peers to attend a meeting with officials. I know there is a great deal of concern on all sides of the House. We will also offer some reassurance about actions and steps which have been taken.

Yarl’s Wood Immigration Removal Centre

Lord Lloyd of Berwick Excerpts

Tuesday 3rd March 2015 Lords Chamber

[Lord Lloyd of Berwick (CB)]

Perhaps the Minister is aware that we are the only country in Europe which does not currently have a maximum time limit for detention in immigration cases. Can he comment on the report published only today by the APPG—of which I had the honour to be a member—in which we recommended that the maximum limit should now be set at 28 days? If that were adopted, would it not go quite a long way to solving the sort of problem which has arisen at Yarl’s Wood?

[Lord Bates]

I listen to what the noble and learned Lord says on this of course. This subject was debated in your Lordships’ House in the context of the amendment to the Immigration Act proposed by the noble Baroness, Lady Williams, in which she sought a cap of 60 days. We have to look at this, but we are making progress. One serious point—I am not making any cheap points here—is that it was not so long ago, in 2008, that children, even disabled children, were held at Yarl’s Wood. We have moved on from that. We are now focusing on pregnant women and the treatment of women there, and I expect us to continue to make progress in the way that we treat people who are in our care.

Counter-Terrorism and Security Bill

Lord Lloyd of Berwick Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord King of Bridgwater (Con)]

My Lords, I will speak also to the other amendments in the group, Amendments 11B to 11T, in my name and those of the noble Lords, Lord West, Lord Carlile and Lord Blair.

In Committee, we had a full debate on the subject of these amendments. It was then generally established that there was pretty widespread agreement among the majority in this House, with some caution and reservations from the Benches behind me about adequate safeguards, that there was an urgent need for proper access and improvements that have been loosely and generally described in the draft communications data Bill.

There has been adequate and clear evidence, and statements by the Prime Minister, the Home Secretary, the shadow Home Secretary and the former director-general of MI5, the noble Lord, Lord Evans, in a maiden speech in this House. Other previous directors-general of MI5, including the noble Baroness, Lady Manningham-Buller, agreed on this, as did the noble Lords, Lord Butler and Lord Armstrong, who also spoke in the debate. They all recognised the problem we face, which is that our legislation has failed to keep pace with the rapid growth of the new technologies around the internet and the complications in the whole field of social media communication. One should recognise—it is common ground—that the extraordinary speed of ISIL’s southwards advance across Syria and into Iraq was achieved on WhatsApp, which is able to communicate with thousands of people at the same time and get messages across much more efficiently than was possible with some of the old military communications systems, as anyone who has been a soldier will recognise.

It is against that background that we have heard the clearest warnings. The noble Lord, Lord Evans, in an impressive maiden speech said that in 2013, when he was director-general, he thought that the worst was over. He now admits that he was wrong, and anyone who looks at the current situation and the threat that we face in this country and more generally in the world from terrorism will realise what he meant. Chillingly, he also said that the threat was increasing but our capacity to meet it was diminishing. That gets to the whole purpose of what I and noble Lords who join me in this enterprise have sought to bring before this House. This Bill, by chance, deals with an aspect of data collection; and the opportunity therefore arose to take the steps that the previous Government sought to recognise. The noble Lord, Lord West, referred to his experience in that Government and recognised the need for this perhaps six years ago; it was certainly needed three, four or five years ago. This Government recognised it and published a draft Bill two and a half years ago that sought to address the issue, which was then the subject of examination by the Joint Committee of both Houses, under the chairmanship of the noble Lord, Lord Blencathra, who is in his place today.

By the end of the Committee debate on this issue, we had provided an opportunity for this House to take a decision that would then give the other place the chance, if it wished, democratically to incorporate the essential provisions of the draft communications data Bill into this counterterrorism legislation in the recognition that they were an important part of the counterterrorism needs of this country at this time. The point was made absolutely fairly by the noble Lord, Lord Blencathra, that his Joint Committee criticised a number of aspects of the draft Bill. We sought in our amendments to deal with a couple of the more specific and difficult aspects that had attracted particular criticism.

The first of those was that the draft Bill set out a whole range of purposes for which data could be collected. Given the urgency of the situation, we decided to delete all those that involved local authorities, the health service, the Inland Revenue and a number of very worthy bodies that might otherwise have been included and might have a case for collecting data. But in the short-term, stop-gap measure needed in the immediate months ahead, we limited our proposal simply to national security and serious crime. Moreover, we recognised that this was not perfect legislation and that it needed improvement—as the noble Lord, Lord Blencathra, said in a number of criticisms—so we put a sunset clause on it. In the mean time, to make sure that we deal with another concern, we have also asserted that it would be subject to affirmative-procedure orders of both Houses of Parliament, whenever the Secretary of State wished to make such an order under this legislation.

Against that background, we then learnt during the course of debate that the Government did a significant amount of work on the previous draft communications data Bill and the noble Lords, Lord Blencathra and Lord Armstrong, had the opportunity to see some of that. The noble Lord, Lord Blencathra—I do not think I am misquoting him—said that he was satisfied that 95% of the Joint Committee’s criticisms had been met. So we entered the Committee stage with the challenge to the Government to pick up our original, older amendments to the draft communications data Bill and either replace them with the present improved versions that are apparently sitting in the Home Office, or make them available to noble Lords for us to table to meet the criticisms that these amendments are not as good as they should be.

I think it is now common knowledge that the Government have not felt able to offer these improved versions—and I understand that there is a problem, because they feel that further work needs to be done—because it was decided not to proceed with the draft communications data Bill, so it has not been given the priority that others might have hoped it would be given in having further work done on it.

The position is further complicated because, I understand, both the Government and the Opposition reached an agreement through the usual channels that the Bill that we have before us would be fast-tracked, but the condition of agreeing to the fast-track arrangement was that no substantial additions would be made to the Bill. One understands why that was put in, against the background to agreeing the fast-tracking of legislation of this kind, but my point is simply that that was decided before Paris and before the events in Belgium, and before the almost certain knowledge that access to social media, which the French security authorities have but which we do not, was crucial in so quickly tracking down the people responsible for that outrage in Paris. The Home Secretary and the Minister were put on record as believing that that was almost certainly the case.

I understand that both the Government and the Opposition will oppose my amendments today, so I will just say this to the House. I start with quotations from the Home Secretary herself in a Statement that she made to the House three weeks ago:

“Let me be absolutely clear: every day that passes without the proposals in the draft Communications Data Bill, the capabilities of the people who keep us safe diminish; and as those capabilities diminish, more people find themselves in danger and—yes—crimes will go unpunished and innocent lives will be put at risk … Quite simply, if we want the police and the security services to protect the public and save lives, they need this capability”.—[Official Report, Commons, 14/1/15; col. 871.]

Noble Lords can find that Statement by the Home Secretary in Hansard and check it right through. It was echoed by two people on the Back Benches who know much about the subject, in the shape of Mr Jack Straw and Sir Malcolm Rifkind, who both emphasised the importance of getting access to those communications data to handle the challenge of the new technologies, which at the moment is not adequately available to us.

We are now faced with a significant gap. A lot of days are going to pass. I understand that the Prime Minister and the Home Secretary have made it clear—I think that the noble Baroness leading for the Opposition and the shadow Home Secretary also made it clear on behalf of the Opposition—that this legislation would have a high priority in the next Government, whomever they may be. But look at the situation. We in this House have no idea who the next Government will be. We do not have much idea how long it may take to form that Government. I recall the days spent trying to form coalition agreements when this Government came to office.

I also remember that, many years ago, when I was more closely involved, we won an election. We had something called L Committee, which was the legislation committee. The Government arrived full of enthusiasm, full of manifesto pledges and guarantees that had been given at one stage or another from one department or another. Enthusiastic Secretaries of State went into their new department to be embraced by officials saying, “We are delighted that you have given the top priority to our legislation. L Committee will meet next Tuesday and you must ensure that you come out top of the list”. So those pledges made here that this or that will be the first priority, when we do not know which Government there will be, are obviously the most uncertain that we could face at this time.

We shall fail to take what I see as this exceptional opportunity presented to us, which could have gone to another place for its consideration, and the risk will continue for longer than it need to have done. Noble Lords who have been present in the past few minutes in this House will have heard the contribution from the noble Lord, Lord Tebbit, and the concerns that many have. As a fellow occupant of the Grand Hotel in Brighton on that night, I know exactly what he meant. We face a very serious threat from terrorism.

I understand that the Government and the Opposition feel honour-bound to hold to their position, but we will lose an opportunity to put in place a temporary, stop-gap measure which could have reduced the threat to our nation from terrorism at present. We just have to pray that we do not pay too high a price for that. I beg to move.

[Lord Lloyd of Berwick (CB)]

My Lords, I support the amendment. Like others, I have been involved with national security for many years—longer, I suspect, than anyone else in this Chamber, except my noble friend Lord Armstrong. I worked with the Security Service when it did not even exist, so in my first report, I had to refer to the Security Service, SIS and GCHQ en bloc as “the agencies”. I continued to work closely with the Security Service until I gave up being chairman of the Security Commission in 1999. Others referred in Committee to their first contact with the Security Service. I remember an occasion long ago when I visited its premises in Gower Street. The door was opened by a young lady I knew and we said simultaneously, “Fancy seeing you here”. Her name was Elizabeth Manningham-Buller, and I think we all agree that she has done very well. I would very much like the noble Baroness, Lady Manningham-Buller, to be aware of that but she is not in her place, and I am sorry that she is not here to hear me say it.

--- Later in debate ---

[Lord Phillips of Sudbury (LD)]

Before the noble and learned Lord, Lord Lloyd of Berwick, sits down, perhaps I may say that I always listen immensely carefully to what he says, by dint of his experience, but I am not fully clear why he is adamantly against the Bill as a whole. I understand that it is largely due to its potential counterproductivity, as he sees it. However, I am not clear why he is in favour of this set of amendments.

[Lord Lloyd of Berwick]

For the very reason that, as I have tried to explain, I can see no reason for the Bill to be brought forward now. I hope the noble Lord will understand that. Therefore we have, in any event, a gap. Much more important than that, however, is that the other Bill will save lives; this Bill will not.

[Lord Carlile of Berriew (LD)]

My Lords, I shall make a few very brief comments in supporting my noble friend Lord King. It is not right that we should replay the whole of the debate in Committee.

The first is that, as I understand it, the Government acknowledge—and by that I mean the whole of the Government—that there is a gap in the facilities which are necessary for the proper prevention and detection of terrorism. I understand it to be acknowledged by the whole Government that that gap is recognised as being in the field of communications data. The issue is what should be used to fill that gap. I am very disappointed, if I may say so with great respect to my noble friend the Minister, in the response—or rather, the lack of response—that has been given to last week’s debate in Committee. I say that for this reason.

My understanding—following the committee so ably chaired by my noble friend Lord Blencathra—is that, following severe criticism by his committee of the communications data Bill, from which these amendments are derived, though not copied exactly, a further draft Bill was prepared. We were told last week that that further draft Bill was shown to my noble friend Lord Blencathra, and to another member of his committee, the noble Lord, Lord Armstrong, whom I am delighted to see in his place. The judgment made by my noble friend and the noble Lord was that nobody could decently describe the draft amended Bill as a snoopers’ charter at all, and that it went 95% of the way towards meeting the need. One derives from that that it was recognised as a good Bill which met almost all the requirements set out in its criticism by my noble friend’s committee.

Counter-Terrorism and Security Bill

Lord Lloyd of Berwick Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, I hope that I may be forgiven if I start with a very brief personal explanation. I had an operation on my spine on Thursday of last week but I had already put down my name to take part in this debate because counterterrorism is a subject in which I have taken a very close interest over the past 40 years. I was the first ever Interception of Communications Commissioner, appointed in 1985, and I was the author of the report on counterterrorism legislation in 1995 on which the 2000 Act was based. I think I can say that I have taken part in every debate on counterterrorism from that day to this and I can probably also say that this will almost certainly be my swan song. But I did at least want to take part in the debate today. Of course, my views on the Bill may be right or wrong, but at least I am speaking from fairly long experience.

In my view, the powers to seize passports and to exclude British citizens from returning to the United Kingdom are so objectionable in principle that they should be resisted on that ground. I agree with everything that has been said by Liberty in its excellent report on this subject. I also agree with Liberty that these new powers, if exercised, would do absolutely nothing in practice to make us any safer. Why do I say that? The reason is quite simple. We are concerned with some 500 individuals of interest to the police who have travelled to Syria in recent years, of whom about half are said to have returned. So 250 of them are still there. We are told that these powers are essential to prevent these 250 from returning. But the figure of 250 must surely be put in context to see what, if any, harm or difference it would make if they did return, if they wanted to.

We know from what Dame Elizabeth Manningham-Buller told us in 2006 that we had about 20 terrorists in this country at the turn of this century. By 2006 that number had increased to about 1,500, of whom 1,000 had already attended—this is of great importance—terrorist training camps in Pakistan. Those known to be here must surely have presented exactly the same sort of threat over the years as would be presented if the 250 were now returned from Syria. Yet this risk has been successfully contained to a quite extraordinary extent over the years by the vigilance of our police and the Security Service. In the 15 years since 2000, there has been but a single atrocity—the London bombings on 7 July 2005 in which 52 people lost their lives. Whatever else can be said, the risk has been successfully contained over the years under the law as it currently exists, despite the fact that there are 1,500 suspected terrorists already present in this country. To what extent will that existing risk be increased by allowing a further small group of suspects to return from Syria? That surely is the crucial question which so far as I know has never been asked and certainly has not been answered. The only possible answer that one can give is that we obviously do not know for certain what extra risk they will cause, but the overwhelming probability must be that they will not increase the risk in any way, having regard to the suspected terrorists already present in this country. I suggest that the risk might well be negligible. It is certainly very small indeed. Unless it can be shown—it has not been shown—that by allowing in the extra 250 people, if they choose to come, we shall be increasing the risk to a significant extent, the need for this Bill has simply not been made out. The question then becomes a rather different one. Assuming that to be so, to what extent, if we pass this Bill, will it do us harm? That is the question to which I now come.

There are currently in this country about 2.5 million Muslims, of whom about 100,000 are thought to be potential sympathisers to the terrorist cause. Everybody agrees that we will find a long-term solution to the terrorist problem only by keeping the majority of Muslims in this country on our side and doing what we can to bring about an ideological shift of attitude among those 100,000 Muslims. That will take a long time—probably a generation or more. As the noble Lord, Lord Condon, once said, in a speech that I shall never forget, you do not bring about ideological changes of that kind by putting people behind iron bars. Surely the crucial question is whether the legislation as now proposed will help to bring about the change that we need or only serve to make matters worse. I am afraid that the answer to that is only too clear. The sort of legislation that we are now being asked to pass can only make matters worse. One can see that by looking at the past.

We will be making the same sort of mistake if we pass this legislation as we have made so often in the past. We made it first, as I remember very well, when we passed the notorious Part 4 of the 2001 Act. Under that provision, terrorists could be detained without trial. Eventually, too late—it should have happened much sooner—that legislation was struck down by the House of Lords. We made the same mistake again after that legislation had been struck down by bringing in the idea of control orders. There only ever were 48 of those orders, but they were thought to have been even more divisive than what had gone before. They too, in the end, bit the dust. The same applied to TPIMs and all the other repressive legislation with which we are familiar.

Nobody will ever know exactly how much harm all that repressive legislation has done, but it must surely be obvious that the damage to community relations has been very great indeed. The truth is that we have spent much too much time and energy in what is called the Pursue aspect of our so-called respect approach and nothing like enough time on the Prevent aspect. Of course, it is the Prevent aspect that is by far the more important if we are ever to find a long-term solution to the problem. That was the very point made recently by the Intelligence and Security Committee in its report on the Rigby murder—that we should spend much more time on Prevent and much less time on pursuing these matters. How much better it would have been if, after the London bombings, instead of passing the unnecessary legislation that we did, we had taken the same attitude that the French have so magnificently done to the recent atrocity in their country. But we did not take that approach, and we are now being asked to make exactly the same mistake as we have made so often in the past.

Given this history, one would have imagined that the Prime Minister would have hesitated a little longer before making his announcement on 2 September, within two days of the threat having been raised from substantial to severe. Sadly, that was not the case and we now have this Bill before us. On any view, so repressive a Bill should be subject to something more than the fast-track procedure. It will be undermining fundamental liberties in important respects and therefore deserves very careful scrutiny. But what does the Prime Minister do? He says that it will be subject to the fast-track procedure. I cannot think of any Bill less suitable for the fast-track procedure than this one. The reasons given in the Explanatory Notes seem to be wholly inadequate. I can think of no good reason why the Bill should not wait until after the next general election but that, apparently, is not to be. It makes one wonder what possible purpose the Prime Minister could have had in wanting to bring it forward so urgently. One can only think of reasons which one must instantly reject: that he needed to give the Commons something to do to fill the time up to the beginning of the election, or reasons even more cynical than that. I can think of no good reason for giving this Bill the fast-track procedure and, if we do nothing else, we must surely resist that.

That brings me to my last point. In some ways, it may seem a peripheral one, but it throws a good deal of light on the Government’s attitude to these matters. The current Independent Reviewer of Terrorism Legislation is, as we know, David Anderson QC. I held the same post myself many years ago and there have been many reviewers between then and now. The noble Lord, Lord Carlile, was one and I am glad to see him in his place. I think we would all agree that Mr Anderson has been an outstanding success. He spends about 15 days a month working as a reviewer when he could otherwise be working as a QC. He tells us that, in order to do the job, he needs to be solely responsible for the output; otherwise he would not feel he was being truly independent. As he says, it enables him to meet Ministers, parliamentarians and the media and give them the benefit of his views. Yet what do the Government now propose? They propose to replace this man, who is doing such an excellent job, with a committee called, I think, the Privacy and Civil Liberties Board.

We all know that Governments can do silly things from time to time, but I simply cannot imagine anything sillier than that. How can a committee do the sort of job that Mr Anderson has done so well? Fortunately, the Government have had second thoughts and it is now proposed that Mr Anderson should become the chairman of this grand-sounding board. However, that is not what Mr Anderson happens to want. He was asked what he wanted and he said that he needed some further straightforward support—that is, he wanted someone to help him in the same way as a junior helps a QC. In his view, that is the best way in which he can do his job. Why on earth do we not give Mr Anderson what he wants rather than what somebody else may think he wants? I hope that we shall see the back of Clause 36 very soon.

What is the way ahead? We should beg Mr Anderson on our knees to complete the job that he has already started, which he is not expected to complete until next May, and which covers many of the matters that are covered by the Bill. We should then make sure that the Government take the Bill away and bring it back in May, with all the improvements that I know—I think we all know this—Mr Anderson will have made to it in the mean time. To force the Bill through now under the fast-track procedure seems to me the height of folly.

Data Retention and Investigatory Powers Bill

Lord Lloyd of Berwick Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, this debate has clearly attracted the attention of a large number of experts on this subject. We have already heard from five such experts on the Back Benches. My only justification for taking part is that I was the first ever Interception of Communications Commissioner, appointed as long ago as 1985. I think I can claim that, whatever my expertise may be, it at least antedates that of all the other experts in the Chamber today.

In the Statement that the noble Lord read the other day, he referred to the important role that communications data play in prosecutions. He mentioned that they are relied on in 95% of all prosecutions, and I have no reason at all to doubt that figure. However, as for the purpose for which the evidence is used, we were told that it is in order to identify criminal associations between people and possibly to answer a defence of alibi. Some of your Lordships must have thought that those were very narrow justifications or purposes for which the information is used, and they would have been very right to be puzzled by it. As we know, the evidence can be given to prove that a telephone conversation has taken place between two people. However, the contents of that telephone conversation cannot be used in evidence, yet that is by far the best evidence that there could be because it would mean that the criminals could be convicted out of their own mouths.

Before I am called to order by the noble Lord for venturing far beyond this Bill, he will understand why I am doing so, as this is a subject that I have been interested in for a very long time and I find it impossible not to mention it. No doubt, if there is to be a review of RIPA, it will be covered.

As for the Bill, it is clear that we must continue to be able to use communications data in court. For that reason, we must be able to serve valid retention notices on those who provide communications services to retain data for up to 12 months.

The 2009 regulations which contain those provisions are based on the data retention directive of 2006. Through no fault of ours, that directive has been held to be invalid by the ECJ—not the ECHR, which is of course the usual culprit in these matters. Therefore, it seems to me that we must give those regulations a better foundation. That is all that the Bill does; so far as I can see, it does not alter them or add to them in any way.

As for the other part of the Bill—the so-called extraterritoriality provision—I have certainly always understood that interception powers are applied to companies providing communications services in this country, wherever those providers are based. Apparently, that has now been questioned but, to my mind, the questioning is without foundation. All companies operating in this country must surely be subject to the same regime, and that is all that that part of the Bill achieves. It is extraterritorial—a word which always raises hackles—only in the sense that it enables us to serve warrants on companies which are based outside the country but operate within the country. Therefore, I can find no objection to that part of the Bill.

This, in my view, is a necessary and urgent Bill, and I can find no fault in it. I therefore urge the House to accept it.

Communications Data and Interception

Lord Lloyd of Berwick Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

Of course I do not agree. To be frank, I am a great believer in the partnership that the coalition represents. I have given an indication today in repeating the Statement that it is important to see this as a partnership between protecting individual liberty and at the same time making sure that we have the capability. I am so grateful to the noble Lord for his support in that regard. I am sure he would not expect me to go into detail as to why we have not progressed. We said in the Statement that we recognised that there was not enough unity of purpose across the coalition to continue with the communications data Bill. I make no apology for that. This will obviously be discussed at the time of the general election and hopefully afterwards we will be able to address the issue.

[Lord Lloyd of Berwick (CB)]

My Lords, I hope that the noble Lord will recall that a committee of privy counsellors was set up some years ago to consider the admission of the intercept as evidence in terrorist and criminal cases. Does he agree that the intercept, the actual words spoken, provides by far the strongest basis on which to convict terrorists and other serious criminals—far better than just the fact that a communication took place? When does he think that the Chilcot committee, which is still considering this matter, is going to report?

[Lord Taylor of Holbeach]

My Lords, I am not in a position to answer that particular question. It may be beyond the gift of anyone to answer it at this stage. The noble and learned Lord makes a very interesting point which I am sure will be considered, but it is not part and parcel of this legislation, which is very narrow in what it is seeking to achieve. We are not looking to extend the powers that we currently have available.

Student Visas

Lord Lloyd of Berwick Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Taylor of Holbeach]

I will start with the last suggestion made by my noble friend because it is really important. Despite having to deal with this problem— I think the whole House will understand why the Government have had to deal with this problem—we recognise the enormous asset that we have in the higher education and further education facilities in this country. They are global assets and we want them to be available to the world. But they must be conducted under rules which reflect the fact that people come here to study and not as a short cut to involvement in working.

We have had a lot of debates in the House. I think that some of the best have been on this subject, but sometimes I have been the only person saying that students should remain within the net migration figures. I hope that noble Lords who thought differently will be thinking along my lines now and seeing how important it is. I have emphasised that we want the brightest and the best to come here, but they should do so with their sponsorship in order and without the criminality that has been revealed by this particular investigation.

[Lord Lloyd of Berwick (CB)]

My Lords, I have a question as to the order of events referred to in the Statement. In the first place, the investigation into these important matters started, we are told, at the beginning of February. There is also a reference to the BBC “Panorama” programme, which was also at the beginning of the year. Which of these two events came first? Was it the “Panorama” programme which stimulated the investigation? If so, should it not be given credit for it?

[Lord Taylor of Holbeach]

I hope that I have paid tribute. The Statement did, in fact, pay tribute to the “Panorama” programme. It has done the country huge service in revealing this abuse. I asked the very same question when I was being briefed on the issue earlier today. There was indeed an investigation by immigration enforcement—UKVI itself had initiated an investigation of the London colleges. It appears that the London-based colleges have been causing trouble, in particular where the universities are established elsewhere and have branches in this country.

We did not have suspicions about English-language testing until it came up as a result of the “Panorama” programme. The two things are complementary and reinforce the action that the Government have taken in investigating the matter.

Immigration Bill

Lord Lloyd of Berwick Excerpts

Tuesday 1st April 2014 Lords Chamber

To conclude, we pay something of the order of £70 million or £80 million a year to sustain a system that is uncivilised, brutal, expensive and unfair. I plead with the House to consider very seriously whether we can go on supporting it and whether the time has not come for major reform of what I can describe only as a deplorable policy common to all parties in this House and to all of us, which we allow to continue year after year, even in the teeth of the United Nations Committee Against Torture, which specifically begs the United Kingdom to look very closely at what it has done and consider whether a limit should not now be brought in.

[Lord Lloyd of Berwick (CB)]

My Lords, I support the amendment for all the reasons given by the noble Baroness, Lady Williams, in her most eloquent speech. She has left it to me to say something about the law in this area—a somewhat duller subject, I fear. The basic legal principle involved is not in doubt. Executive detention in immigration cases is lawful if—but only if—there is a realistic prospect of removal within a reasonable time. That is the principle that was established in the case called Hardial Singh. If that principle does not apply, it is otherwise unlawful.

It may be supposed that the purpose of the amendment is to make indefinite detention unlawful—but it is not, because it already is unlawful. The purpose is quite different; it is to impose a statutory limit on lawful detention, which in this case is proposed at 60 days. The application of the general principle to which I referred is, of course, dependent on the facts of every particular case that comes before a judge. There was a time when it looked as though judges, left to themselves and applying that general principle, would reach a consensus on what should be the maximum period of lawful detention in ordinary cases. If they had, a statutory limit of 60 days would not be required.

Sadly, the most recent cases have shown that that is not going to be the way ahead. I refer to just two. In the Muqtaar case, decided in October 2012, the Court of Appeal dealt with a Somali ex-offender who could not be returned to Somalia. He was nevertheless held for three years and five months before being released. His claim for damages failed. It was held that there could be what was described as a realistic prospect of removal without it being possible to specify the period within which removal would reasonably be expected to occur. I find that pretty difficult to follow, but on any view it seems to deprive the principle to which I have referred of any real effect.

Another case was Francis, decided in July 2013. The claimant in that case was convicted of using a false British passport. He was recommended for deportation and was then detained for three years and nine months. At the hearing, the Secretary of State argued that the court’s recommendation created what was called a “statutory warrant for detention”. The judge accepted that argument—otherwise, he said, he would have awarded substantial damages. I am not sure what the Secretary of State’s argument really meant but, happily, that case is going to the Court of Appeal and I hope that we will know what the position is.

I cite these cases because they have led me, with great reluctance, to the view that we cannot now look to the judges alone to arrive at a maximum period of detention in immigration cases. It is for that reason that I support a statutory maximum, as proposed in this amendment, for I am in no doubt at all that a maximum is required. No doubt some would like a maximum longer than 60 days and others a maximum shorter than 60 days. However, the existence of a statutory maximum is in my view essential to prevent detention in these immigration cases becoming in practice indefinite—or, at any rate, seeming to be indefinite—with all the suffering and misery that that involves.

The arguments in favour of a statutory maximum are set out in the report of the Bingham Centre for the Rule of Law in its safeguarding principle 17 at pages 82 to 87, and in the very excellent briefing provided by Detention Action. The arguments advanced there seem to me completely convincing and it would serve no purpose to repeat or summarise them. Therefore, I will add just two footnotes. Last week, as it happens, we debated a different form of indefinite detention—indeterminate sentences for the protection of the public, or IPPs. They were abolished by Parliament in 2012 because the consequences of the IPP system were so unjust. In the case of IPP, the detainees had all, of course, been convicted of a serious offence and were deemed to be dangerous. One may therefore ask how much more unjust is this detention in the case of would-be immigrants who have committed no offence at all?

Secondly, I have spent many hours wearying the House on the injustice of control orders, as your Lordships will remember. We were always told, in those days, that there was no alternative to control orders for these dangerous men who could not be convicted in the ordinary way. I was therefore very pleased when control orders came to an end and TPIMs were substituted, in particular because Parliament imposed a statutory limit of two years. Last week, the last of the TPIMs lapsed and, so far as I know, there was no immediate protest from the Home Secretary. That leads me to think that control orders and TPIMs were never really as necessary as people said and that, somehow or other, the Home Office has found another way around. I suggest that exactly the same will happen if we impose a statutory limit of 60 days on this form of detention. If necessary, the Home Office will always find some other way of dealing with the problem. For that reason, I shall vote for this amendment and hope that the House will do so, too.

EU Police and Criminal Justice Measures: EUC Reports

Lord Lloyd of Berwick Excerpts

Thursday 23rd January 2014 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, I am very glad to follow the noble Lord, Lord Sharkey, who has spoken so clearly on these matters. When I put my name down to speak in this debate I knew that I must look back at what I said the last time we debated these matters, to ensure that I do not say something different on this occasion. I find that on 9 July 2013 I asked whether there was not an unjustified risk in opting out of what is good, which is the 35 measures, in order to get rid of the 95 pre-Lisbon measures, most of which are of no real use to anybody.

I am happy to say that the noble Lord, Lord McNally, who we miss today, said that there was a lot of logic in what I had said. I also note that on that occasion I said that it was the noble Lord, Lord McNally, who was missing the whole point in this debate and not, as he suggested, the noble Baroness, Lady Smith, who I am happy to see in her position today.

Of course, things have moved on since then and I think that the best thing I can do today, as one of the few non-members of the European committee to take part in this debate and following the comprehensive speech of my noble friend Lord Hannay and the other excellent speeches that we have heard—above all, from the noble Baroness, Lady Corston—is to say how grateful we should all be for all the noble work that they do and have done since our last debate on our behalf, in particular for providing us with their follow-up report. It is a great comfort to the rest of us while we get on with other things, all of which are much less important than what we are discussing today, to feel that they are looking after these matters on our behalf. Having said that—and I really mean it—the only remaining service that I can usefully perform today is to draw attention to those matters in which I have the closest interest, on which the committee seems to have made out a strong case and in respect of which the Government’s response has been the most feeble.

First, I am delighted that we will opt in to the existing European Council decision on Europol, but I can see no good reason for not opting in now to the new regulations when they come forward. The only reason given by the Government is that they want to wait to see the completed text in case there is something that they do not like. That might be a good answer if we were talking about some non-proven field but it is not a good answer in relation to Europol, with which we are all, happily, very familiar.

Secondly, like the committee, I am glad that we are remaining in Eurojust, but I urge the Government also to remain in the European judicial network. Here, I strongly agree with what the noble Lord, Lord Sharkey, said. The more co-operation we can have across national boundaries the better. The only answer given by the Home Secretary for not accepting this recommendation is that we all already talk sufficiently with each other in respect of these matters, but that is a completely inadequate answer.

Thirdly, I come to the European probation order. It is not one of the 35 measures but I can give no better reason for opting in to it than that it was suggested that we do so by Sir Scott Baker. For the reasons he gave—and there are no better reasons from no better man—I suggest that we should opt back in to it. Once again, the Government have given no reason for not doing so.

Lastly, I want to refer to the question of the court’s jurisdiction. I simply do not understand what the Government’s position is on this and I would be very glad if, in his reply, the noble Lord could give us an explanation.

I have come to the end but my final point is perhaps the most important. I urge the Government to press on with the negotiation with all possible urgency for two reasons: first, to avoid, if possible, the need for any transition arrangements and, above all, to avoid a last-minute gap appearing in the structure, which could be truly disastrous; and, secondly, to give us enough time to prepare for the next debate, which has been promised and at which we will have to make a crucial decision.