Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Mackay of Clashfern and Baroness Chakrabarti

Report stage
Tuesday 13th April 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I will speak briefly in support of the collection of amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick. It does not take me to remind your Lordships that this is a very difficult moment in Northern Ireland and not one to be doing anything to undermine, or anything that could be interpreted as undermining, the Good Friday agreement.

I hear the endorsement from the noble Baroness, Lady Hoey, of the Government’s position: that the Bill must do nothing to jeopardise the ECHR and the agreement. With respect, however, that view is not shared by human rights analysts in the United Kingdom, in Northern Ireland and internationally. Of course, in this respect, even the perception of jeopardising the convention, and therefore the agreement, is a significant problem.

In the context of Northern Ireland, the problem stems from going down this road of de facto—or attempted—immunities and statutes of limitation in the first place. The amendment in the name of the noble Baroness, Lady Hoey, further demonstrates the difficulty with opening this Pandora’s box and going for limits on prosecution and on suits against the Government rather than bolstering the robustness and timeliness of investigations and providing adequate support for veterans and serving personnel.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, all the amendments that the noble Baroness, Lady Ritchie of Downpatrick, has put before your Lordships would delete from this Bill its application to Northern Ireland. In other words, the result of these amendments would be that this defence Bill would not affect Northern Ireland.

It is vital that all defence legislation for the United Kingdom applies to the United Kingdom because the purpose of that body of legislation is the protection and defence of the whole United Kingdom. Therefore, whatever solution may be necessary for what the noble Baroness speaks of, it certainly cannot be to delete from the defence legislation of Northern Ireland an Act that will affect the defence legislation of the rest of the United Kingdom. I strongly suggest that this is not a feasible way of proceeding. I am all in favour of her having a meeting with the Minister in early course— I hope that the Minister will have time for that—but I do not think that we in your Lordships’ House can possibly accept this solution.

So far as the amendment in the names of the noble Baroness, Lady Hoey, and the noble Lord, Lord Lexden, is concerned, the question of how to deal with this matter is very tricky indeed. I have been anxious about it for a long time, and I do not see it getting any easier to solve. I do not feel able to comment on the wisdom of that amendment at this time, but I would be happy to hear what the Minister has to say about it.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Mackay of Clashfern and Baroness Chakrabarti

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am pleased, as always, to speak after the noble Baroness, Lady Ritchie of Downpatrick, in support of her amendment, supported by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Hain, who is of course a former Northern Ireland Secretary.

I need not repeat the point about the importance of the Belfast agreement—it is well known to everyone in your Lordships’ House—or explain the matters that the noble Baroness in self-deprecating fashion referred to as “technical”. These are not of course just technical matters, because the Belfast agreement is an international treaty. However, I will pre-empt any doubts that some sceptics may have about the importance of these rather neat amendments.

The Belfast agreement is not just about what happens in Northern Ireland but about the law and the values in relation to all communities in Northern Ireland and indeed on the island of Ireland. That is why it is so important that, even though the Bill is about overseas operations—not about operations in Northern Ireland itself—it is about the law and the values as they apply to people who may seek redress in the Northern Ireland courts, even if it is in relation to overseas operations in which they served or potentially argued they were otherwise victims.

I urge noble Lords to take these amendments extremely seriously, not least in the context of the group we have just heard about. The Minister and I may disagree about such things as whether I am right or wrong in my plain view that many aspects of the Bill violate the ECHR, but at least these amendments would allow where possible any wriggle room to be used for interpretation so that we do not fall foul of that precious agreement that has been so vital to maintaining relative peace for such a long time.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, these amendments are designed on the assumption that provisions in the Bill might be contrary to the human rights convention and, of course, the Human Rights Act. I regard it as 110% essential that the Belfast agreement is fully respected and implemented. I have therefore supported this amendment on the view that, since a question has been raised about it, it is right that it should be thoroughly checked and that, if necessary, these amendments should be inserted to make sure. I have my doubts as to whether it is necessary but I am all in favour of it being checked in detail by those who drafted the Bill, to make sure that, whatever happens, the Belfast agreement is not damaged in any way by the provisions in the Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Mackay of Clashfern and Baroness Chakrabarti

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, it is a great relief to follow the noble Lord, Lord Butler of Brockwell, because I entirely agree with him. Agility, competence and experience in looking at a matter such as this are important. The commissioner has just that, being very flexible and close to the situation.

I have had difficulty in following some of this debate, as well as that on earlier amendments. I cannot believe that it is in accordance with the rule of law that Governments and their officials should ask people to commit crimes. That seems the very reverse of the rule of law, which says that you should not commit crimes and you should do what the law tells you to do as a general and universal rule. This Bill sets out a framework under which certain kinds of necessary activity in relation to the subject matter are defined in respect of day-to-day requirements, so that when the act is performed it is no longer a crime and therefore it is perfectly reasonable for the handler to ask the person in question, the participant, to do it. If it was kept as a crime, it would be breaking the rule of law.

I agree with the view that those initially responsible for activating this procedure need to be trained and experienced, and I have seen evidence that that is so. What I find difficult to be sure of is the exact level at which some help and advice should be given. I am confident that the Investigatory Powers Commissioner is qualified to give a view on the propriety of a particular course of action and whether it should be regarded as a crime.

As was said earlier, those who defend us when we are in the Palace of Westminster have to take serious decisions very quickly against an existing background of law. The problem in this context is that there is no particular background of law except that the actual doing of the thing is a crime at the present time. I do not agree with the view that that is a satisfactory system which should remain, but it is right that, so far as is possible, prescription of what can be done in regard to a matter of this kind should be available to the participant in advance, with as high judicial or legal authority as is appropriate in the circumstances; namely, that time may be of the essence and therefore it may be urgent to obtain advice. I agree with the view that this is best done by the commissioner.

I agree with the amendment tabled by the noble and learned Lord, Lord Thomas, if it is necessary. I have the feeling that the investigation commissioner has authority to deal with an objection of this kind in terms of the 2016 Act. I do not feel sufficiently confident to contradict the noble and learned Lord, Lord Thomas, on the need for this amendment, but I would be glad to know what the position is on the powers the commissioner has to deal with this matter.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be brief on this, currying some favour, I hope, with the Government Whip that will be taken on board when I speak in a later group to my own amendments once more. It is a great privilege to follow the noble and learned Lord, Lord Mackay of Clashfern. Your Lordships heard it from him: when is a crime not a crime—when it has been pre-authorised with immunity attached in advance? That would be a difficult thing to explain to most members of public. However, it is not so difficult, perhaps, when you compare it with intrusions into our privacy, which is where this model comes from.

The complexities of this debate just make me sadder about where we got to in the previous one. We now have to decide about safeguards, because your Lordships have potentially created a breath-taking immunity. Under existing surveillance law, there are different models: it takes a magistrate to authorise an intrusive search of your premises; it takes a Minister to authorise the tapping of your telephone; yet inserting an undercover agent—more intrusive than either of those two measures, because a human will change your behaviour, not just monitor it—is internally authorised. Now, we have gone further, and a crime can be committed, authorised by the Executive, authorised by the police for their agents, authorised by the intelligence services for their agents, and so on.

Clutching at straws for safeguards, I have to support some kind of external authorisation at the very least. If it is good enough for search warrants and telephone taps, it must be even more necessary when criminal conduct, including violent conduct, might be authorised. As for which model, I have heard the arguments either way, and I tend to think political warrantry of something so politically dangerous is problematic, and it has proved so in the past. Former Government Ministers have written in their memoirs about how tired they were when, late at night, they were making endless intrusive surveillance authorisations. It is not about hollowing out the state; it is about trying to insert independence into the realm of criminal law. I admire the thrust of the eloquent speech of the noble Baroness, Lady Wheatcroft: if Government are to do such a thing, they should take some responsibility, not just for legislation but for authorisations.

We heard from the noble Lord, Lord Butler, with his enormous experience, his prediction that there will be some low-level warrants here and a very large number of them. This would present a real problem if it was political warrantry, because Secretaries of State have a lot to do, and there are going to be a lot more warrants under this legislation than those limited to, for example, the security services.

These are all imperfect checks and balances but, on balance, at the moment I prefer judicial authorisation, even though that will, in my view, bring dangers for the judiciary. Post-notification authorisation is a very weak protection but, if it is to happen, I agree completely with the noble and learned Lord, Lord Thomas of Cwmgiedd, that Amendment 33 without Amendment 34 is pretty much a nonsense.

Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Mackay of Clashfern and Baroness Chakrabarti

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I need no conviction that children are better when their parents continue together, undivorced. I am strongly in favour of helping people who run into difficulties in their marriage. Various things can happen that require help. One of the amendments today refers to part of the 1996 Act that is still in force, providing money to help people to overcome these difficulties.

I need no conviction that divorce is bad for children, but I do need conviction that, if the parents are determined to divorce, nothing can be done to make it better for the children. That is where the arrangements under the Children Act are important. I believe that they are as good as can be achieved, but the important thing is that I would much prefer no divorce at all. We must concentrate on trying to keep parents together and keep the marriage going as a marriage and not in any other way.

I cannot see that the court can say, “This divorce is not good for the children” or “This divorce is good for the children”. Can noble Lords imagine a judge having to decide whether a divorce is good for the children? The answer is no in every case I know of: it is not a good thing for children that their parents have reached the conclusion that they have to divorce, as I said earlier. It is like tearing the children apart, because they love both parents and are very upset when anything happens to part them—but, sadly, the responsibility for staying together is with the parents. I strongly believe that doing everything that can be done to help them to stay together is the best help for the children.

[Baroness Chakrabarti]

My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.

However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.