Anti-social Behaviour, Crime and Policing Bill
Lord Lloyd of Berwick Excerpts(10 years, 8 months ago)
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Lord Hope of Craighead
My Lords, I put down my name in support of this amendment for the purpose of drawing attention to a case decided by the Supreme Court in October 2013. It was not mentioned or discussed in the report of the Joint Committee on Human Rights, but it has a bearing on this issue in connection with the amendment moved by my noble friend Lord Pannick. Before I do that, I should like to express my appreciation of the amendments tabled by the Minister in relation to the protection of people who are detained and also the timetable which is set out in the amendments.
I had occasion to look at this very closely in a case from Scotland following on a decision by the European Court of Human Rights in Strasbourg in a case called Salduz. It is clear that the amendments which the Minister has tabled are necessary in order to meet the requirements of the convention for the protection of people who are detained, in particular the right to consult a solicitor. I appreciate the careful way in which that problem has been addressed.
As for the timetable, it is appropriate that this should be in the Bill. In 1980 a provision was introduced in Scotland to give the police the power to detain somebody prior to arrest. In that provision, the timetable was set out. It had to be amended in the light of recent developments following the case of Salduz, but again the timetable was in the Bill. I believe that, for the protection of the subject, that is where it should be, so I welcome the way in which these amendments have been framed.
In the Supreme Court, the case R v Gul was concerned with the definition of terrorism, which is set out in Section 1 of the relevant Act, and the concerns expressed about the breadth of it. Terrorism, as defined in that, has a succession of various acts. People’s perception of what amounts to terrorism can vary according to what their perception is of what is going on and where these activities are being conducted. It is not necessary to discuss that issue today, but it has a bearing on what may be passing through the mind of the port officer who has the power to detain and on the need for some protection of the subject because of the way in which that power may be exercised.
I should declare an interest as I participated in that judgment and was particularly concerned about this issue in our discussions. At the end of the judgment, in paragraph 64, the Supreme Court noted that,
“under Schedule 7 to the 2000 Act the power to stop, question and detain in port and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting”,
which is of course the whole point to which the amendment draws attention. Although the court went on to add that it was not concerned with that issue in that appeal, the last sentence of the judgment reads:
“Detention of the kind provided for in the schedule represents the possibility of serious invasions of personal liberty”.
It is worth bearing in mind in support of the point that has been made that that has been a concern expressed by the Supreme Court in addition to others.
The noble Lord, Lord Pannick, was kind enough to mention what I said in the case of O’Hara, which was the first judgment I ever delivered in this House many years ago. The test which I set out, and which has been recognised, is not particularly exacting. It is partly subjective and partly objective. The subjective part is important because it looks only to what the officer says was passing through his mind at the time. The objective part is that somebody else stands back, takes what was passing through the officer’s mind at the time he was exercising his judgment and asks the question “Did that justify what he did?” That was how the power given to the police was expressed. It does not set a particularly high standard, but it is a protection. It is that protection which is absent at the moment and which I respectfully suggest is in need of being written into the Bill to meet the concerns that have been expressed by various people, including the Supreme Court.
Lord Lloyd of Berwick (CB)
My Lords, perhaps I could just have a brief word on Amendments 93A and 93B. There has been much discussion over the years as to whether the right to stop under Schedule 7 should be available only on reasonable suspicion. I am glad that the amendment now before the House does not go that far. The arguments in favour of and against the power to stop without reasonable suspicion are all very well set out in the excellent recent report of David Anderson, the reviewer. Unfortunately, that particular question was not included in the public consultation which took place in 2011. My view has always been in favour of the power to stop without reasonable suspicion. There is no real analogy with the power to stop under Section 44 of the Terrorism Act. But the power to detain—that is, the power to detain under paragraph 6(1)(b)—seems to me altogether different.
By the time that power is exercised, the person in question will have been questioned for up to an hour. All the benefits of the power to stop without suspicion, which I strongly believe in, particularly the deterrent effect of that power, will by then have accrued. Moreover, the examining officer will have had ample time during that hour to explore whether there are grounds for reasonable suspicion. The balance of arguments seems therefore to shift decisively in favour of reasonable suspicion being the test at that stage. For that reason, I support the amendment.
Perhaps I may say in passing how glad I am that the maximum period of detention has been reduced from 24 hours, as it was when I was considering these matters many years ago, to the six hours which is now proposed. That seems to me altogether admirable, as are the other amendments put forward by the Government.
Lord Avebury (LD)
My Lords, I also want to add a word in support of the amendment which was moved so comprehensively and powerfully by the noble Lord, Lord Pannick. I am disappointed that the Minister has not had time to make any observations about the two cases that I cited at an earlier stage. The first was where a distinguished imam was stopped at Heathrow Airport, made to give a DNA sample and fingerprints and detained for some time. It took me 15 months to get the DNA sample removed and his name expunged from the records. The second case was of a gentleman who was stopped three times within the space of months, indicating, to my serious concern, that there must exist a blacklist of people who are to be stopped when they pass through airports or sea ports. That is a very serious development on which I had hoped the Minister would be able to make some observations by now.
Amendment 94ZA in my name would delete the whole of new paragraph 11A from Schedule 7 to the Terrorism Act. That paragraph covers the power to take possession of anything that is found when a person is examined or searched at a port of entry, including not only electronic materials but papers, photographs, videos or audio cassettes, and to keep a copy of that material for as long as it is considered necessary for the purpose of determining whether a person falls within Section 40(1)(b); that is, that he is or has been concerned in the commission, preparation or instigation of acts of terrorism. It is clear that the vast majority of people who are held at the ports of entry have nothing to do with terrorism whatever. When this matter was discussed on 11 December, the Minister quoted the observation of the independent reviewer of terrorism legislation that,
“‘it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable’”.—[Official Report, 11/12/13; col. 813.]
However, that statement was not the whole story, as the Minister knows, and it was a little disingenuous of him to omit the rest of Mr Anderson’s comments in his evidence to the Home Affairs Select Committee on 20 November. He recommended that the power to copy and retain data from electronic devices should be exercisable only if a senior officer was satisfied that there were grounds for suspecting that the person appeared to be concerned in the commission, preparation or instigation of acts of terrorism. Mr Anderson went on to compare the indefinite retention of those data with the period of 48 hours that applies to the retention of documents copied under reasonable suspicion powers such as Section 43 of, and Schedule 5 to, the Terrorism Act 2000. He did say that electronic data can be held for very long periods under the management of police information regime, a practice that had recently been criticised by the courts and which is in marked contrast to the rules and guidance that exist under the Protection of Freedoms Act 2012. There should be some consistency between these different regimes while allowing a margin of appreciation in cases where there is a reasonable suspicion of terrorism.
Anti-social Behaviour, Crime and Policing Bill
Lord Lloyd of Berwick Excerpts(10 years, 10 months ago)
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Lord Lloyd of Berwick (CB)
My Lords, I had not intended to speak on this part of the Bill, so I am afraid that I have not done as much homework as I should. For many years, however, I have protested against using the civil law to do the work of the criminal law, because it leads to problems when you adopt that approach. For that reason I have always been uneasy about ASBOs. For example, it was years before it was decided—if it has now been decided—whether the standard of proof on ASBOs is the criminal standard or the civil standard but as near the criminal standard as makes no difference. So I shall not be sad to see the back of ASBOs.
Part 1 of the Bill deals with injunctions. Injunctions are a civil procedure. Therefore, on the face of it, one would expect to see the civil standard apply. When the question comes to whether the respondent is in breach of the injunction, the criminal standard applies under paragraph 1 of Schedule 2. That seems a sensible approach. With regret, therefore, I cannot support the noble Baroness’s Amendment 19C, but I am happy to support her other amendments.
Lord Faulks
My Lords, we are considering the powers to grant injunctions under Clause 1, but it is important to consider the other provisions in Part 1, particularly Clause 4, which specifies those who can apply for injunctions, including local authorities, housing providers, the local chief of police and various other agencies but excluding individuals.
The anxiety that has been generated by Clause 1 is understandable. This anxiety has been excellently analysed by the noble Baroness, Lady Mallalieu, but it needs to be closely examined to see whether it is justified. The Minister told the House at Second Reading that draft guidance had already been published for front-line professionals and referred to particular parts of that guidance. At page 24, it is specified that,
“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.
The jurisdiction to grant an injunction is given to the High Court or the county court, or the youth court in the case of a respondent aged under 18. The court has to be satisfied first that the respondent is engaged in anti-social behaviour and secondly that it is just and convenient to grant an injunction for the purpose of preventing him or her from engaging in anti-social behaviour in the future.
We should not underestimate the inherent safeguards that are present in that procedure. The expression “nuisance or annoyance” is well established in the context of landlord and tenant law and it has been statutorily incorporated into various housing Acts. The expression was introduced with little controversy by the Anti-Social Behaviour Act 2003. There is now a wealth of case law applying this test, which is applied by judges up and down the country. The words by themselves might be thought of as attracting remedies where actions complained of are relatively trivial, but in fact, for “nuisance and annoyance” to pass the threshold, it has to be to be something pretty substantial.
By the same token, judges are not easily persuaded that it is “just and convenient” to grant an injunction unless the court is satisfied that it is equitable to do so. The expression “just and convenient” is well established in law and will mean that the courts hesitate before granting injunctions, unless the behaviour complained of is such that the court considers it fair to do so. If a court were to be too draconian—as to which there has been little evidence in the past—then successful appeals would follow.
The provisions of Part 1 allow for a range of requirements to be included in injunctions, including if necessary a power of arrest. The terms of an injunction will of course depend on the particular facts of a case. Similarly, a power of arrest will be attached only if the seriousness of the allegations merits the exercise of such a power. A point made cogently by the Law Society in its briefing on this part of the Bill is that injunctions are used in the case of noise nuisance as an alternative to possession proceedings. They result in the person or their family staying in their homes, but with restrictions as to their conduct rather than their having to be evicted.
With respect, there seems to be a number of difficulties about the proposed amendments as explained by the noble Baroness, Lady Mallalieu. They would essentially create a criminal regime—there is a criminal offence later in the Bill—for low-level anti-social behaviour, in that before an injunction could be granted there would have to be proof beyond reasonable doubt. This would mean that hearsay evidence could not realistically be used. Witnesses are often afraid of the perpetrators of anti-social behaviour and give their complaints to a housing officer who can then present evidence. One should not underestimate the misery that can be experienced by residents of, let us say, a block of flats where one of the occupants is determined to make the rest of the occupants’ lives a misery. The amendment would probably necessitate seriously frightened residents having to give evidence and be cross-examined. It is much more likely that they would simply refuse to do so.
In our anxiety to ensure that civil liberties are preserved we should neither lose sight of the victims of anti-social behaviour nor underestimate quite what a scourge it can be. I understand entirely what lies behind this amendment and the concern expressed by a number of noble Lords that essential freedoms could be at risk if the powers under Part 1 were used too enthusiastically. However, I feel that the really substantial amendments here will emasculate the right to obtain an injunction under Part 1 and result in a failure to protect those who are the victims of anti-social behaviour. Nevertheless, by way of acknowledging the very real and sincere concerns that a number of people or groups have about Clause 1, I propose in my amendment, which I will outline shortly and is supported by the Joint Committee on Human Rights, that a degree of objectivity be imported into the definition of conduct capable of causing nuisance and annoyance. That amendment, which I will be submitting, would help, but I am afraid that I am against these amendments.
EU: Police and Criminal Justice Measures
Lord Lloyd of Berwick Excerpts(11 years, 2 months ago)
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Lord Lloyd of Berwick
My Lords, it is a pleasure to follow the noble Lord, Lord Anderson, with whom I so often find myself in agreement. I hope that tonight he is not casting me in the role of his hypothetical judge.
I was of course very glad that the Government decided to include Europol, Eurojust and, above all, the European arrest warrant among the 35 measures, but I am not yet persuaded that an opt-out in 2014 is the way ahead. One argument used by those in favour of the opt-out is that it would set limits on the jurisdiction of the Court of Justice of the European Union over our domestic affairs. I could understand that argument—although I would not agree with it—if we were going to get shot of the court of justice altogether. Of course, that would be pure fancy. We would still be subject to the jurisdiction of the court in respect of all the many police and criminal justice measures we have signed up to since Lisbon, and would also be subject to its jurisdiction in respect of the 35 measures which we all hope to rejoin. So the European court will be there anyway in one way or the other, and I think we should pay little attention to that argument in favour of the opt-out.
The argument against opting out is simple. We may not succeed in rejoining all 35 measures which are agreed to be in our national interest, at least on terms which we would want. When I put that point to the noble Lord, Lord McNally, on 9 July, he replied that of course there would be that risk, but he said that with good will on all sides and with colleagues who want us to succeed, the risks would be minimised.
If we do opt out, I can only hope that the noble Lord, Lord McNally, is right. If there is indeed that risk, as I think that he accepts, in opting out, surely the next question should be: what do we actually stand to gain by opting out; what are the advantages? Here, I find myself in agreement with the speech of the noble Baroness, Lady Smith of Basildon, on 9 July. It is true that the Government could say that they had repatriated, to use that great word, 95 powers taken from us by the European Union, but what would that mean or be worth in practice? How many of those powers have any importance for us today? How many are even relevant today? I am, of course, not referring to the 35, but to the other 95.
The noble Baroness asked the noble Lord, Lord McNally, to give us some details about what we have to gain by opting out of the other 95. As I remember, she pressed him for some figures. At the bottom of column 234, the noble Lord did give some figures. However, he went on to say that, in asking for figures, the noble Baroness was missing the whole point. He said:
“Through today’s Statement, the Government have sent a clear message that we have addressed the problem left by Protocol 36”.—[Official Report, 9/7/13; col. 234.]
With respect to the noble Lord, it was surely he who was missing the point, not the noble Baroness. If we have nothing to gain by repatriating the powers contained in the 95 measures, what on earth is the problem to which the noble Lord referred? What is the point of opting out? It could be said that we might be able to renegotiate the European arrest warrant if we opt out, but why cannot we do that without opting out? What is the objection to our attempting to do so?
Until, therefore, it is demonstrated that there is something to gain from opting out, there is, to my mind, no problem. The game on which we are embarked—as the noble Lord, Lord Bowness, said on 9 July and repeated again today—is simply “not worth the candle”. That was the view expressed by the European Union Committee at paragraph 274 of its report and it was the view expressed by a group of distinguished academics led by Professor John Spencer last August. I hope that even now the Government will listen to that view and call a halt to this unnecessary and possibly even dangerous exercise in which we seem to be involved.
Crime and Courts Bill [HL]
Lord Lloyd of Berwick Excerpts(11 years, 6 months ago)
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Lord Lloyd of Berwick
My Lords, with the leave of the House, I would like to suggest that consideration of Commons Amendments 24 and 136 be postponed to another day. I hope that anything which had that effect would meet with the approval of the House and, not least, of the Minister because, as we all know, we are very pressed for time.
The purpose of these amendments is to introduce what is known as a forum bar in extradition proceedings. A forum bar, which is an additional ground on which extradition could be refused, was introduced in 2006 but it was never brought into force. The reason, as given at the time by the noble and learned Baroness, Lady Scotland—and I wish she was in her seat—was that it would have put us in breach of our bilateral treaty obligations with all our extradition partners. She was, surely, right about that. On 8 September 2010, the Home Secretary announced a review of our extradition arrangements. Sir Scott Baker, a recently retired Lord Justice, was appointed, with two colleagues, to consider the question of our extradition arrangements generally and the forum bar in particular. They produced a massive report which I have beside me here and they came down firmly against a forum bar for all the reasons set out in Part 6 of their report, which I will not repeat. They thought it was much better that, where there is a contested forum, the forum should be agreed between the prosecuting authorities in the two competing jurisdictions, not by the court in one or other of them. Sir Scott Baker’s report was published on 20 September 2011 and nothing happened until October 2012 when the Home Secretary accepted most of its recommendations.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I hesitate to interrupt the noble and learned Lord. I have moved the question that we now consider Commons amendments, which I hope the House would wish to get on with. The noble and learned Lord’s handwritten amendments have been scheduled for debate at a particular point. At that time, he can move the amendments he is speaking to or, indeed, the adjournment of the House if that is what he would wish to do. I do not believe that he reflects the sentiment of the House, which is that we have a lot of business to get through today. This is clearly an important piece of legislation and we should consider it in the order in which the amendments have been scheduled to be debated. I ask the noble and learned Lord to conclude his impromptu speech and save his more detailed views until the point at which we are scheduled to debate them.
Lord Lloyd of Berwick
My Lords, I hope that what I am about to suggest will find favour with the noble Lord and the rest of the House. I remind noble Lords that we have 20 pages of amendments before us to consider at some time tonight. They were never considered at all on the Floor of the House of Commons and have never been considered by us at all, until now. They could have been brought before us last year. They were not. They have been brought before us at the last moment, and it is almost disgraceful for us to be asked to amend the law in an important respect that will undoubtedly affect our foreign relations without the matter having been properly considered in this House and the other place. I am sorry that the noble Lord does not immediately rise to that debate, but I seriously suggest to him—and I hope that there will be support for this—that instead of debating these 20 pages of amendments, the whole part that deals with extradition should be considered in the next Session of Parliament. It could easily be dealt with as a new Bill brought before either this House or the other place at the beginning of the next Session. That would be the proper way to deal with a matter of this importance.
Lord Dubs
I support the noble and learned Lord in what he said. It seems rather curious that the Government have introduced amendments in the Commons at the last minute that, by definition, we cannot debate fully because we are dealing with Commons amendments. We cannot have the proper debate that we would be likely to have in Committee and on Report. We are being treated rather badly by the Government. This is an important issue. A couple of years ago, when I was a member, the Joint Committee on Human Rights spent a lot of time considering extradition—it is an important issue. In terms of parliamentary democracy, the Commons did not consider these amendments at all, and we are being asked to do so in a truncated form late this evening when we will not have a chance for a proper debate. Surely the noble and learned Lord has a good case.
Lord Lloyd of Berwick
My Lords, perhaps I may speak to Amendment 24B, which is included in this group. Earlier today I suggested that Commons Amendments 24 and 136 should be postponed for the reason that these amendments, unlike all the others we have been discussing today, were not considered at all on the Floor of the House of Commons, and are only being considered at this very late stage in this House—one that is, let me say, barely full. This is not the way to legislate. It is also so unnecessary.
When I said earlier today that these two amendments should be postponed, I think I made it clear that the Government should withdraw these two amendments now and bring them back early in the next Session of Parliament when we can debate them properly both in the other place and here. I cannot see what the Government can possibly lose by taking that course. Yes, there would be some delay, but as it is seven years since we have had a forum bar on the statute book and it has never yet been put into force, I find it impossible not to ask what the hurry is now. Although there would be a delay of a few extra months, it would not make all that much difference, and at least it would mean that we had done justice to these very important amendments, which now we shall not be able to do.
I agree with almost every single word of the noble Lord, Lord Rosser, in his excellent speech, but he will not actually expect me to support the detail of his amendment. That is because we already have the Scott Baker review, which was published just under two years ago. What we ought to be doing today is implementing that review rather than legislating in its teeth and asking for another review in three years’ time. I repeat, what a way to legislate: to appoint a group like that led by Lord Justice Scott Baker to go into this question and then to ignore what it said. I believe that I am right in saying that the noble Lord, in proposing his amendment, did not once refer to Lord Justice Scott Baker’s report. Again, what a way to legislate.
I turn to the merits of the new forum clause and ask how it would fare judged against the Scott Baker report. I can say that it has all the defects of the 2006 forum clause, which was so strongly criticised by Lord Justice Scott Baker, with some more defects besides. The basic mistake is to believe that the question of where a defendant should be prosecuted when there are different countries claiming jurisdiction should be decided by a judge, on the grounds, so it seems, that that will produce a fairer result. I can understand that view but, in my strong opinion, it is not the way ahead. Where there are competing jurisdictions, the question can only sensibly be decided by agreement between the two competing jurisdictions. One of the main considerations in these cases must always be where the bulk of the evidence lies on which the defendant is to be convicted, if he is to be convicted. That is essentially a question for the prosecuting authorities. They will have all the material at their disposal. How is that material to be put before the judge? Are they to appear before the judge and argue the toss before him—is that what is proposed? If it is to be a judge, why should it be a judge in England rather than a judge in the requesting state? At pages 222 and 223 of the report, the authors give nine distinct reasons why a forum bar is not the way ahead. I would have liked to have heard the noble Lord’s answer to each one of those reasons. However, I will content myself with simply reading their conclusion, at page 228:
“However, in our firmly held view the issue of forum is better decided by the prosecuting authority than the court. A decision about where a case should be tried is par excellence a prosecutorial decision, as is a decision whether it should be prosecuted at all: the prosecuting authority will be familiar with the detail of the case, the available evidence and the viability of proceeding in one jurisdiction rather than another”.
That conclusion should have been accepted by the Government but it has not been.
That is only one of the reasons given in the Scott Baker report. Another, which I think the noble Lord has already touched on, is that it would necessarily generate satellite litigation. I will read what the report says the district judges, the people who decide these cases, had to say on that question:
“The evidence of the District Judges dealing with extradition cases was strongly to the contrary”—
in other words, against a forum bar. The report continues:
“They cautioned that if brought into force the sections would generate litigation and that it would be very difficult to control the evidence of the party seeking to resist extradition. For example, it will be contended that wide ranging disclosure of documents is necessary when an ‘all the circumstances interests of justice’ test has to be met”.
One of the many reasons why the 2006 forum bar was never brought into force was that it was thought to be too complicated. If the 2006 Act was complicated, how much more complicated is this forum provision, where we have prosecuting certificates of the designated prosecutors being questioned, under proposed new Section 19E in Amendment 136, before the High Court in judicial review proceedings? How is that going to speed up the process of extradition, which is the whole object of these proceedings? It is madness to think that it will; it will not.
Another reason that has been given—this is the last that I shall mention—is that enacting these provisions will automatically put us in breach of our international obligations. That is certainly a point which was carefully dealt with by the noble Lord, Lord Rosser, and I agree with what he said. In respect of category 1 countries, for example, we already have a system for deciding between two countries where there is a dispute as to where the proceedings should take place. That is known as Eurojust, and it is a system that is operating now and without any difficulty. If we pass a forum bar, we will have to opt out of Eurojust. Are we to be the only country to do so? No other country, so far as I know, has suggested anything similar to a forum bar.
What about the category 2 countries? Exactly the same applies as when we had existing extradition arrangements. Why should other countries which are not in Europe be satisfied with the decision of our court about which is the most suitable jurisdiction for the defendant to be prosecuted? Those are reasons which were given by the noble and learned Baroness, Lady Scotland, and they were absolutely sound. No answer to that objection has yet been given.
I come back to where I started. These are but three of the reasons why this forum will not work. I prophesy that it will not ever be brought into force. Like the 2006 Act, it will be found to be impracticable and actually impede the speed which is so essential in these extradition cases. I wish the noble Lord had accepted my suggestion that this matter should now be withdrawn by the Government and brought back again in the next Session when we could debate it properly. However, I understand that it is now too late to hope for that.
Lord Dubs
My Lords, earlier today the noble and learned Lord, Lord Lloyd of Berwick, and one or two other Members of this House raised the question of the Government’s procedure in this matter. I have to say that I cannot recall an instance where the Government have introduced a fundamental amendment not in Committee or on Report, but actually when the Commons were discussing the Bill and amendments to our amendments. There would have been plenty of time in the early stages of the Bill in either House for the Government to have introduced the amendment. I cannot understand why this seems to be an afterthought.
Governments usually do these sorts of things when there is a real sense of urgency, when there is a dramatic reason why they have to move quickly. I cannot for the life me understand why they felt it necessary to do this at the last minute. Having heard the Minister earlier today, I feel that he was caught. Had he been a Back-Bencher—and I hope he is not going to be a Back-Bencher as a result of all this—I suspect that he would have agreed with out arguments. However, being the Minister, he is rather debarred from saying on the spot that the Opposition or other Cross-Benchers are right and the Government are wrong; he cannot say that. However, in his heart of hearts I suspect that is what he may have been thinking.
It seems to me that this is not a proper way to treat either House of Parliament, when there is absolutely no reason why the Government should behave in this way. The difficulty we are in is that there is no easy way of testing the arguments because the rules of procedure for this part of the Bill, when we are dealing with Commons Amendments, give us a very limited opportunity to be critical. We do not have the flexibility that we have in earlier stages of legislation. We are caught in a position where we have a very serious matter, and where we cannot do justice to the process of scrutiny in order to come up with a better answer. The Minister may have said one or two things which are now going to be difficult to put to the test.
The Minister mentioned the death penalty. As somebody who is very keen on campaigning internationally to abolish the death penalty, I had understood that it was absolutely accepted practice by Britain that we would never under any circumstances let anybody be extradited to a country where there was no assurance that the death penalty would not be used. Why the Minister mentioned the death penalty, I do not know, but I hope that the existing policy will hold good.
Lord Taylor of Holbeach
My Lords, despite the criticism of noble Lords about the quality of debate that we might have on this issue, I feel that we have had an opportunity to discuss the matter in some depth. It forms part of the Bill that is before us as a result of the Commons amendments. It is our responsibility to discuss the Bill and it is my responsibility to encourage noble Lords to see these particular amendments through. I believe that they are in the interests of good governance and in the interests of this country. The measures we have introduced on the forum will make the extradition process more open and transparent. Making the courts the sole body to consider human rights issues, which has not been discussed much but is a very important change, will ensure that people are not able to abuse the system and delay extradition endlessly by raising specious last-minute human rights points which can then be the subject of judicial review. Together, our proposals will improve our extradition arrangements and, in my view, make them fairer.
The noble Lord, Lord Rosser, has asked my right honourable friend the Home Secretary to commission a review of our proposals and their impact on the speed of extradition procedures, as well as on our current and future extradition relations. This is the substance of his Amendment 24A. As the noble Lord will be aware, we commissioned a review by Sir Scott Baker. His report, referred to extensively by the noble and learned Lord, Lord Berwick, was a comprehensive and detailed analysis of our extradition arrangements. The findings of Sir Scott Baker’s panel were very carefully considered by the Government. He has helped us to come to a view about the changes that needed to be made to our extradition procedures, including those we have brought forward in this Bill, with a view to not only improving those procedures but addressing public and parliamentary concern about their fairness. I can assure the noble Lord that once the new forum bar is operating, these arrangements, together with other changes to the Extradition Act, will indeed be subject to the normal post-legislative scrutiny process, which was introduced by the previous Administration, three to five years after Royal Assent.
I now turn to Amendments 136A to 136C in the name of the noble Lord, Lord Dubs. As I have already said, it is important to improve the protections offered to individuals under the Extradition Act. That is why we have introduced our own forum provisions. However, the interests of justice demand that our extradition arrangements are properly balanced to ensure that, while there must be proper safeguards in place for those subject to extradition, our arrangements do not allow a person to escape justice altogether. Therefore it is important that the test for whether extradition should be barred on forum grounds contains no implied presumption against extradition, even where it is clear that no prosecution is possible or likely in the UK. If the Crown Prosecution Service or another prosecutorial body decides after proper consideration—importantly, that will now be tested in open court and I am pleased that the noble Lord welcomes that position—that a domestic prosecution cannot take place, extraditions should not be barred on forum grounds. Justice will otherwise not be done and potential victims will see their assailant, in some cases potentially a suspected terrorist, walk away scot free.
There has been concern from the noble Lord, Lord Dubs, about whether we can ensure that the bar does not refuse to provide any information—in other words, what will happen in the absence of information? This is not the case under our treaties and, under the Extradition Act 2003, a requesting state must provide certain information. That is not being changed by these arrangements.
Amendments 136A and 136B propose a non-exhaustive list of factors for a judge to consider when deciding whether extradition is in the interests of justice. Our strong preference is for an exhaustive list, so long as it is the right list, in order to prevent unnecessary delays in the extradition process arising from individuals raising irrelevant considerations in front of the judge. We believe that the strength of connection to the UK is a relevant factor—I am sure that noble Lords will agree—and we have included it for the judge to consider among others. However, we do not believe that nationality should be identified as a factor in its own right. The UK has historically not had a bar on extraditing its own nationals, which is reflected in all current extradition treaties. There is no intention to introduce such a bar.
Amendment 136C seeks to strike out the provisions in Schedule 19 transferring responsibility for determining human rights representations from the Home Secretary to the courts. The determination of human rights issues is properly a matter for the courts. The courts already consider such issues during the extradition process. This change, which was recommended by Sir Scott Baker in his review, will ensure that human rights issues arising late in the process are properly considered by the courts while also ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising, at the last minute, specious human rights points with the Home Secretary that can then be subject to judicial review.
I shall answer some specific questions raised by the noble Lord, Lord Rosser. He asked what the purpose was of the prosecutor’s certificate. The purpose of the forum bar is to ensure that prosecutors give due consideration to whether a prosecution should take place in the UK. That does not always happen at the moment. Our proposals ensure that a decision on forum is either taken in open court or, in a case where a certificate is issued, in the High Court following any judicial review.
The noble Lord also asked for a definition of clearly unfounded human rights claims. The “clearly unfounded” test is well established as it is already set out in Section 94 of the Nationality, Immigration and Asylum Act 2002. An established body of case law now exists around the term, and I shall now evidence some of it: appeals that frivolously cite Article 2 or 3, or that simply repeat arguments previously considered and dismissed on appeal where there has been no significant change of circumstances.
Both the noble Lord, Lord Rosser, and the noble and learned Lord, Lord Lloyd, asked about treaty breach. I assure noble Lords that the legal advice that I have received is that our forum bar proposals are consistent with our treaty obligations and, for that matter, with the European arrest warrant framework decision.
Lord Lloyd of Berwick
I hope that the Minister will forgive me but this is an important matter. I know that it would be exceptional but would he make that advice available to the House by putting it in the Library?
Lord Taylor of Holbeach
I do not think that it is the practice of Ministers to make legal advice available.
Lord Lloyd of Berwick
It is not practice, but in this instance perhaps the Minister could do so.
Lord Taylor of Holbeach
I am afraid that I have to follow practice in this respect because I believe that advice given by law officers to the Government is always considered to be confidential. However, I have reported the substance of that advice to the House in this debate, and I hope that the noble and learned Lord will accept it.
I turn to the issue that the noble and learned Lord raised right at the beginning of our debate, before we even started considering Commons amendments. I understand his concerns about this matter but, as I made clear in my Statement to the House on 16 October last year in response to the review by Sir Scott Baker of UK extradition procedures, the Government wished to legislate as quickly as possible to introduce provisions on forum. We made that clear at the time.
The Government have worked hard, taking into account the views of prosecutors, to develop an approach which will be acceptable to Parliament and the public. The Official Opposition gave a relative welcome to these proposals when they were tabled in the other place, which I think shows broad acceptance that we have got these proposals right. If we were to remove these proposals from the Bill now, it would be a year or more before those facing extradition would see the benefit of this new and important safeguard. In light of these comments and the response I have given to this debate, I respectfully ask the noble Lord to withdraw his amendment and all noble Lords to support Commons Amendments 24, 25, 49 and 136.
Lord Lloyd of Berwick
My Lords, the House will be glad to hear that I do not wish to add anything to what I have already said. I hope that in some further reply, written or otherwise, the Minister will at least answer some of my questions on the Scott Baker report, which were of some importance. Having said that, I shall not press the amendment.
Citizenship Test
Lord Lloyd of Berwick Excerpts(11 years, 7 months ago)
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Lord Taylor of Holbeach
I do not think that it is necessary to tackle just one task at a time. Making this test relevant was an important task. Noble Lords will know that the current handbook has been in use for six years. It was time to have an update and to make it more relevant. The noble Baroness referred to serious issues on the part of UKBA, particularly its ability to cope with appeals. We are well aware of this and I am absolutely certain that the chairman of UKBA has this matter at the top of his agenda.
Lord Lloyd of Berwick
Is the noble Lord aware that those people who have been resident in this country for many years apparently cannot apply to take the new test if they are over 65? Is 65 really too old to become a citizen of the United Kingdom?
Lord Taylor of Holbeach
I was not aware of that fact and, being over 65 myself, I would like to think that I am still in command of all my facilities.
Ibrahim Magag: Disappearance
Lord Lloyd of Berwick Excerpts(11 years, 8 months ago)
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Lord Taylor of Holbeach
I believe that I have given the noble Lord the answer, which I have given before. Of course, we will learn from this experience, but there are no current plans to reintroduce controls over movement.
Lord Lloyd of Berwick
Will the Minister inform the House how many individuals are currently subject to TPIM orders, and how many of those individuals have been made subject to such orders on the grounds, if I have followed the noble Lord correctly, that they have been raising finance for foreign terrorists?
Lord Taylor of Holbeach
I can inform the House that 10 people are subject to TPIMs. I cannot give the grounds for any of those orders having been made.
Crime and Courts Bill [HL]
Lord Lloyd of Berwick Excerpts(11 years, 10 months ago)
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Lord Dear
My Lords, I, too, declare a registered interest from my experience in policing. I would add in this context that I know quite a lot about terrorism, having suffered two determined attempts on my life at the hands of terrorism, once in this country and once in India. We are talking about the National Crime Agency. I have already spoken in your Lordships’ House on 1 November, giving some examples of the gravity of the issues with which the NCA is likely to be confronted once it gets under way. Its role in the whole architecture of policing will be not only important but critical. One should reflect on the fact that it will be responsible for international dimensions, so far as they interface with and affect the United Kingdom, certainly England and Wales: national, cross-border, inter-force and cross-boundary dimensions of crime. That is what we are talking about: whether the NCA is a proper receptacle for this additional responsibility.
Having served in the Metropolitan Police for five years, I, too, recognise the first-class service on counterterrorism that it has given the population, not only of London but of the whole United Kingdom, going all the way back over 100 years to the special Irish branch, which re-named itself the Special Branch; to the 1970s, when the IRA and the Provisional IRA began bombing in London and elsewhere; to the bomb squad, as it was then called; and to the counterterrorist commands that we see today. If there is any logic at all in counterterrorism, it has to be handled nationally—by definition, the National Crime Agency is national.
At some stage, an argument could well be advanced to move counterterrorism into the ambit and responsibility of the newly formed National Crime Agency, but clearly not yet; the National Crime Agency is not yet born. In its gestation period and infancy, I suspect that it would not be able to pick up and run with the complexities and importance of counterterrorism. But there might come a time in the future when that case can be made—I do not say that it necessarily will be made, but it might be. It seems both sensible and proper that we should be able to legislate to move counterterrorism from the Metropolitan Police to the National Crime Agency if that case is proved.
Like the noble Lord, Lord Condon, I, too, hope that we are not going to get into turf wars over this. The Metropolitan Police has proved itself, as I have already said, and it is right to put on record the high degree of skill that it has demonstrated over many years and indeed the enormous personal bravery of some of its officers on occasions, to whom we owe a great debt. However, I do not think that we should stand in the way of a properly proven logical rearrangement.
The nub of the issue is set out in the Joint Committee on Human Rights paper published on 20 November, which has already been alluded to. I take no position on this, other than to say that on balance—I suppose that I am taking a position; it is a very fine balance—I am prepared to go against the amendment and with the Government. However, I would need reassurance that were such a move to take place—not now but in the months, perhaps even years, to come—there will be a proper consideration of the reasons for such a move, so that one can be satisfied that the decision is being taken in the open, so far as the diktats of confidentiality and so on are concerned. If one follows that line of reasoning, there can be no objection to the clause as it stands.
I do not want to get into a turf war; that would be totally improper. Recognising the severity and the importance of the issues concerned, I simply make the point that a logical rearrangement in the future, if it is so proved, would be the way to go.
Lord Lloyd of Berwick
My Lords, my only excuse for intervening is that I was the author of the report on which the Terrorism Act 2000 was based. I was also the first Interception Commissioner and therefore had direct experience of the counterterrorism activities of both the Security Service and the Metropolitan Police.
I have not always agreed with everything that the noble Lord, Lord Blair, has said, but on this occasion I find myself in substantial agreement with him and also with what the noble Lord, Lord Condon, said on the constitutional issues involved. It may be that at some stage it would make very good sense for counter- terrorism functions to be transferred to the new agency, but not now and certainly not by order. I am not as comfortable on these matters as the noble Lord, Lord Dear. If the matter were put to a vote, I would vote with the amendment.
Lord Harris of Haringey
My Lords, the noble Lord, Lord Blair, concluded his remarks by advising the Government with the old adage, “If it ain’t broke, don’t fix it”. Of course, that is not quite what the Government are talking about here. The Government’s approach on a number of other issues is, “If it ain’t broke, take it to pieces anyway and see what happens”. However, the problem is that this clause, which my noble friend’s amendment will delete, is saying that if the Government decide that they want to change this, it will go through by the super-affirmative procedure without the full, detailed scrutiny of all the issues involved. That is why the Constitution Committee has highlighted the constitutional issue, and why so many noble Lords are concerned about it. If the Government were to propose this, it would be a very major issue with all sorts of ramifications. It is not something that would lend itself to a one-hour debate at 7.30 pm in your Lordships’ House.
Lord Taylor of Holbeach
My Lords, I have a job to steady the House on this issue. It is an important issue and I understand the commitment that noble Lords have shown in addressing it.
The functions of the National Crime Agency have been drafted in broad terms to ensure that the agency is able to tackle all the crimes that organised crime groups are involved in. However, it will also be important that the agency is able to react quickly to any changes in the threat picture. The creation of a new agency with a focus on national threats and the co-ordination of the UK-wide response naturally brings with it consideration of counterterrorism. We have always been clear that counterterrorist policing already has as it stands effective structures but that in time it might be right to consider these national arrangements in light of the reforms that have been made to the national policing landscape.
The maintenance of our highly regarded counter- terrorism policing effort is paramount. Any consideration of changes will not be undertaken lightly by any Government, nor is it wise to distract or disrupt the critical structures with unhelpful speculation. But it is also sensible that we give careful consideration to how we can best future proof the National Crime Agency for a potential role in counterterrorism in the future. The Government have been clear that there will be no wholesale review of the current counterterrorism policing structures in England and Wales until after the establishment of the NCA. Only then will it be right to look at how counterterrorism policing is co-ordinated across England and Wales and decide where it is appropriate for national responsibility to sit. Such a review should sensibly consider whether the National Crime Agency might play a role and, if so, what that role might be.
Lord Lloyd of Berwick
I am not sure I entirely understand this and it may be important. Is there to be a further review after the creation of the new agency and before these powers are exercised? If there was to be a further review, I might be satisfied.
Lord Taylor of Holbeach
Absolutely: I assure the noble and learned Lord that that is exactly the process that we are talking about. It may help noble Lords in this regard if I explain how government policy would be determined by a consultative process before any decision was taken. I thank the noble and learned Lord, Lord Lloyd of Berwick, for making that point.
Clause 2 provides for an order-making power so that the Secretary of State can modify the NCA in relation to counterterrorism functions, including by conferring or removing functions. The order-making power is limited to changing the functions of the National Crime Agency. It does not provide the power to change the functions of other organisations unrelated to the National Crime Agency or to close down organisations. Given the importance of such a decision in the future, before an order can be made the Home Secretary will be required to consult any bodies that she considers will be affected by the order. The order itself will also be subject to the super-affirmative procedure, which is an extended programme of scrutiny by both Houses and indeed the committees of the House.
As a number of noble Lords have pointed out, the Joint Committee on Human Rights yesterday published its report on the Bill and, among other things, raised the question of the mechanism for modifying the functions of the agency. Indeed the report, not unlike the debate today, called for the removal of Clause 2. I can appreciate the concerns of the committee in relation to human rights—these will indeed be important matters for the Government to consider. However, the statutory mechanism for modifying the functions does not diminish the obligations on the Government to give consideration to, and provide assurance on, a whole host of possible implications of a potential future decision. Human rights are only one aspect of a number of consequential effects of any change in policy in this area.
In addition to the Government’s considerations on any future changes, it is important that Parliament can give due time and consideration to any future decisions to modify the agency’s counterterrorism functions. The super-affirmative procedure set out in Schedule 18 will provide Parliament with the appropriate level of scrutiny should an order be made in the future. The House has been reminded of the view of the Constitution Committee on this matter. I will take the opportunity to remind the House of the conclusions of the Delegated Powers and Regulatory Reform Committee. In its report on the Bill it made no recommendation in respect of this power but did comment:
“The idea of adding to a statutory body’s functions by subordinate legislation subject to a Parliamentary procedure is well established”.
There is nothing new in this process that offends the traditions of Parliament.
North Wales Abuse Allegations
Lord Lloyd of Berwick Excerpts(11 years, 11 months ago)
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Lord Taylor of Holbeach
I thank my noble friend for her questions. Clearly, the victims are at the heart of this inquiry and providing them with the confidence to come forward is one of the most important things that we can do. I hope that we in this House will echo the wishes of the Home Secretary by giving that support.
The terms of reference of inquiries are very important to the outcomes they produce. I am particularly concerned that we make sure that the original inquiry in North Wales, the Waterhouse inquiry, was indeed set up in such a way. The noble Baroness, Lady Smith, asked about that but I did not reply to her. However, my noble friend has given me the opportunity to do so. We must make sure that that inquiry addressed the right issues. We now have an opportunity to revisit the inquiry and to make sure that it was not too restrictive in what it was seeking to do.
Lord Lloyd of Berwick
My Lords, am I right in thinking that Mr Justice Waterhouse was appointed to investigate allegations of abuse within the care system but he in fact investigated allegations of abuse outside the care system? We know that he sat for 203 days and found no evidence at all to support those allegations. Should that not have been an end to the matter? I do not know whether the noble Lord is aware of the principle that there should be an end to litigation; so also there should be a principle that there should be an end to investigations.
Lord Taylor of Holbeach
Were it so easy just to put an end to these things, that would be fine, but we are faced with a situation where it is quite clear that this matter was not at an end. Allegations are still being made that should cause a responsible Government to be prepared to revisit the matter. That is not to cast aspersions on the work that was done at the time, but everybody would expect us to look again to make sure that we know exactly what the scope of child abuse was in those very far-off days.
Extradition
Lord Lloyd of Berwick Excerpts(11 years, 11 months ago)
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Lord Lloyd of Berwick
My Lords, I must express some surprise that this seems to be the first occasion on which the Government have expressed gratitude in any public way for the excellent report by Sir Scott Baker on the subject of extradition. Perhaps the Minister might remind us of the date of that report.
Like opting out of pre-Lisbon police and criminal justice matters, which we discussed yesterday, extradition is a subject that has been surrounded by myths. I had hoped and indeed thought that those myths had been dispelled by Sir Scott Baker’s report. I am therefore particularly glad that the Government have at long last accepted his view about the alleged inequality between United Kingdom and United States extraterritorial arrangements, so I hope that we will hear no more about that particular canard. However, I am disappointed that the Government are differing from Sir Scott Baker on the question of a forum power. Does the Minister not agree that if a suspect can be prosecuted in two or more countries, the essential question is where he can best be prosecuted—that is, where he is most likely to be convicted if guilty? In almost every case, that depends on where the bulk of the evidence is. Does the Minister not agree that that is a question that is best decided by the prosecuting authorities in the two countries involved, not by Parliament?
Lord Taylor of Holbeach
I thank the noble and learned Lord for his reinforcement of the esteem with which Sir Scott Baker’s report was received. As the noble and learned Lord will know, it was presented a year ago in 2011. I think it is right that an issue as complex as extradition is properly considered, and I think that if the Government disagree with Sir Scott Baker, they have done so because they have considered the issues that the report raised. The noble and learned Lord implied that perhaps the most important thing is the place in which there is the maximum chance of a conviction being achieved. There is also a matter of justice. Justice requires that people are tried where justice may be seen to be done. It will be for the courts to judge this matter. A Home Secretary will not deal with this matter. I believe the courts in this country are quite capable of determining that.
Chilcot Committee: Intercept Evidence
Lord Lloyd of Berwick Excerpts(12 years, 2 months ago)
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Lord Lloyd of Berwick
To ask Her Majesty’s Government when they expect the Chilcot committee to report on the admissibility of intercept evidence.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government are conducting an extensive assessment of the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. Lawful interception is a vital but complex area, and so it is crucial to get it right. The cross-party advisory group overseeing this work will be further consulted.
Lord Lloyd of Berwick
My Lords, it is now four and a half years since the committee was asked by the then Government to find a way of making intercept evidence available in court. It is two and a half years since the committee decided not to go ahead with the preferred solution, which is PII Plus, on the basis of certain legal advice which it had received. Since then, we have heard nothing. Will the Minister take what steps he can to make that legal advice generally available so that we can judge for ourselves whether it still has validity?
Lord Henley
My Lords, I may depress the noble and learned Lord a little when I tell him that it has actually been longer than four and a half years. I gather that seven previous attempts going back to 1993 have been made to try to resolve this issue, which gives some indication of the difficulty of dealing with it. We have made a coalition commitment that the Government will seek,
“to find a practical way to allow the use of intercept evidence in court”.
However, we must focus on the benefits, costs and risks of so doing, and that is why we want to get it right. As regards the legal advice, I can only say to the noble and learned Lord that it would not generally be appropriate to put into the public domain independent legal advice that had been offered by counsel.