Product Regulation and Metrology Bill [HL]

Lord Pannick Excerpts

Report stage
Wednesday 26th February 2025 Lords Chamber

[Lord Lansley (Con)]

I shall speak to my Amendment 4 in this group, which, we are advised, would be pre-empted if Amendment 2 were to be passed, by reason of the deletion of the relevant provision in Clause 1(1), to which it would add an additional subsection. It would add to the overarching objective of making regulations, which is to secure safe products:

“In considering whether regulations should be made … the Secretary of State must have regard to the likelihood of the United Kingdom being seen as a favourable place in which to develop, manufacture or supply products”.


Of course, many of the debates that we have on the Bill will relate to the question of alignment, or otherwise. One of the reasons why we are considering this legislation is because there would be significant issues to do with the manufacture, distribution and supply of products in this country were we to diverge significantly from the standards that lie behind the CE marking from the European Union. Rather than continue, as we have done, with reliance on the retained EU law legislation, it is the Government’s intention, through this legislation, to enable us to accept CE marking. That is not necessarily on a dynamic basis—I agree that it is a matter of choice whether we do so—but the Bill’s structure is intended to enable that to happen. Because we seek to do that by reference to the adverse economic consequences that may flow from failing to be able to bring products here, which may drive some economic activity elsewhere, it seems important that Ministers making regulations under this legislation should consider whether, as a result, the UK is an attractive place in which to manufacture, distribute or supply products.

This is not a new concept. The noble Lord, Lord Hunt of Kings Heath, on the Government Front Bench will recall that the Medicines and Medical Devices Act 2021 includes effectively the same provision in relation to medical devices. Medical devices are outside the scope of this Bill but it is relevant to a wide range of other industrial products. I do not understand why it should not be an essential part of the way that Ministers consider making regulations that have such an impact to have regard to the positive benefits that can accrue to business from ensuring that we have the right product regulatory framework for them, so I commend Amendment 4 to the House.

I do not agree with the noble Lord, Lord Anderson, that Amendment 2 is a wrecking amendment. Why not? Because, if the first subsection were to be removed by that amendment, the regulation-making power would be removed from the Bill so the Government would have to think again. However, the noble Lord and the House will note that later in this group is government Amendment 44. The original formulation in the Bill was to have consequential amendments to Parts II, IV and V of the Consumer Protection Act 1987. In response to the suggestion from the Delegated Powers Committee, which was unhappy with the sweeping power to amend that Act, the Government have instead said, “We’re going to omit Parts II and IV now”. Part II is the bit I am interested in; it is the part of the Act that relates to product safety. The Government simply propose to remove Part II of that Act.

I say to the House and to my noble friend on the Front Bench that if Amendment 2 were to be passed the Bill would clearly have no further regulation-making power in it. However, if at the same time the House were to resist government Amendment 44 then there would continue to be powers in the Consumer Protection Act 1987 for the purpose of making regulations for product safety. The House will be reminded that Section 11(1) of the 1987 Act says:

“The Secretary of State may by regulations … make such provision as he considers appropriate for the purpose of securing … that goods to which this section applies are safe”.


More detail follows, including the respective ways in which provisions can be determined.

The Government should tell us either how they are going to legislate using the powers in the 1987 Act or, if they want to get rid of them, how they are going to replace them in detail. They have done neither of those things. I know we are going to come back to talk about legislation on product liability at a later stage. The Consumer Protection Act is nearly 40 years old and we know it needs updating, but the Government are not doing that; they are sweeping it away and not giving us anything like the detail that was in that Act as to how the powers are going to be used. Nearly 40 years’ worth of scrutiny of the Section 11 provisions on product safety will also be swept away, because the language in this Bill is not the same as in that Act.

The House will have to forgive me: I am slightly anticipating the next group and Amendment 3, because if Amendment 2 is passed, Amendment 3 will not be debated; it will have been pre-empted. I want to make it absolutely clear that although I support my noble friend’s criticisms of the way the Bill is constructed, there is a route available to maintain the powers for determining regulations for product safety. That would force the Government to come back and amend the Consumer Protection Act in ways that are more substantive and clearer than what the present Bill offers us.

[Lord Pannick (CB)]

My Lords, I recognise and value the constitutional principle that the noble Lord, Lord Hunt, eloquently draws to our attention. Ministers should not be given broad delegated powers, but constitutional principles are not absolute; they have to recognise practical reality.

In the context of this Bill, the practical reality is that technical regulations of the breadth and complexity that will be produced cannot sensibly be enacted by primary legislation. We are dealing, in Clause 1(1), with regulations that reduce or mitigate risks presented by products; to ensure that products “operate efficiently and effectively”; and that ensure that products designed for weighing or measuring operate effectively. Are we really to debate each and every such regulation in this House, either on the Floor of the House or in Grand Committee? We would have little, if any, time for anything else.

If the regulations raise issues of principle, Parliament retains control. Parliament does not have to accept the regulations; it can vote against them under the normal principles. The noble Lord, Lord Hunt, suggested, quoting someone from one of the committees—I cannot remember which—that this is Government by diktat. I suggest to him, with the greatest of respect, that that is unfair and inappropriate in this context, for the reasons I have given.

[Lord Deben (Con)]

My Lords, I make it clear that, having disagreed with Amendment 1, I agree with the noble Lord, Lord Hunt, in his discussion here. I fundamentally disagree with the words of the noble Lord, Lord Pannick, because this is exactly the moment when we give away basic parliamentary control. We know perfectly well that, although it is better than it was, it is still true that a great deal can be done by ministerial diktat which ought to come to Parliament.

I am not in any way suggesting that everything should come to Parliament. Of course, it is very easy to say, “You can’t have everything”, but that does not mean that we should allow this to go through without insisting on having a much clearer definition of where ministerial diktat is proper and where it is not. Until we get that right, this is, if I may dare say so to the noble Lord, Lord Pannick, the slippery slope.

Refugees: Notice Period for Home Office Accommodation

Lord Pannick Excerpts

Monday 18th December 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I say to the noble Lord that that is not the case. You can start to apply for things like universal credit before you receive the biometric residence permit. I appreciate that that is not perfect, but it is certainly enough time to get into the system.

[Lord Pannick (CB)]

My Lords, does the Minister agree that part of the problem here is that asylum seekers are restricted in their ability to work until they receive their asylum status? Therefore, when they receive their asylum status, they have no resources that they can use in order to obtain accommodation.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes an interesting point, and I will take that back to the department.

Violence Against Women and Girls

Lord Pannick Excerpts

Monday 4th December 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

On noble Baroness’s second question, the Preventing Sexual Violence in Conflict initiative is a key focus for the UK. We are a global leader on this. We have committed £60 million since the launch of this programme in 2012. In November 2022, the UK hosted an international PSVI conference with over 1,000 attendees. A political declaration came out of that, which was endorsed by 53 countries. It sends a clear message that these types of crimes must end and sets out steps on how to achieve that. We have also launched the PSVI strategy, which sets out how the UK will work to drive global action to prevent and respond to CRSV—conflict-related sexual violence—and that includes sanctions. I refer noble Lords to my noble friend Lord Ahmad’s comments on that in June. Regarding the domestic picture, significant amounts of money and resource have been committed. I am sure I will be answering more questions on that shortly.

[Lord Pannick (CB)]

My Lords, does the Minister share the widespread outrage at the use of rape and other forms of sexual violence by Hamas in Israel on 7 October? Does he also share the widespread outrage that so many individuals and groups who do such excellent work in combating sexual violence have remained silent until now—almost two months since those outrages? Can he think of any reason why in this respect Jewish women do not matter?

[Lord Sharpe of Epsom (Con)]

My Lords, this is a very sensitive subject. I found Christina Lamb’s article in the Sunday Times very distressing and upsetting, but very powerful. Why did it take the UN so long to condemn those actions? The words of Professor Ruth Halperin-Kaddari, who was quoted in the article, deserve mentioning:

“It’s mindblowing. We were there for our sisters when terrible things happened across the ocean, when they took away abortion rights in US, the killing of women in Iran, the abduction of Yazidis … but with us they looked away and I can’t think of a reasonable answer”.


Unfortunately, I can think of an unreasonable answer, and it disgusts me. From a personal point of view, I hope the perpetrators get what is coming to them—and believe me, I do not mean sanctions.

Iranian Islamic Revolutionary Guard Corps

Lord Pannick Excerpts

Wednesday 29th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I recognise the strength of feeling in this House, and in the other place, on this subject. Let me explain what the Government have done. The Home Office is leading work on countering Iranian state threats in the UK, making full use of the breadth and expertise of government and our extraordinary and courageous police, security and intelligence agencies. On 1 November, the Security Minister announced in the other place that the Prime Minister has asked him to lead the Defending Democracy Taskforce to build further resilience within our institutions in order to safeguard against physical, personnel and cyber threats.

The National Security Act will provide another significant toolkit in the fight against individuals working for state entities such as the IRGC; it criminalises a wide range of hostile activities conducted by, for or on behalf of foreign powers. Materially assisting a foreign intelligence service in any activity in or related to the UK will be a crime.

We continue to make use of any and every opportunity to call out Iran’s malign activity—I apologise for the long answer but there is a lot to say. More than 350 Iranian individuals and entities have been sanctioned for activities, including human rights violations. Since January 2023, we have sanctioned more than 140 Iranian individuals and entities in response to the regime’s human rights violations. That is being strengthened.

[Lord Pannick (CB)]

My Lords, is there not a much simpler and shorter answer to the question from the noble Lord, Lord Coaker: the Foreign Office?

[Lord Sharpe of Epsom (Con)]

It is a shorter answer, I will certainly give the noble Lord that. The Government keep the list of proscribed organisations under review. We do not comment on whether a specific organisation is or is not being considered for proscription. This position has been informed by several considerations, including to avoid creating an expectation that the Government will proscribe a certain organisation, to reduce the risk of an organisation taking evasive action before the proscription order comes into force, and to manage the risk of any subsequent decision being vulnerable to challenge on procedural grounds. The Government will always consider the full range of powers available to tackle threats on our soil.

Abortion Clinics: Safe Access Zones

Lord Pannick Excerpts

Monday 20th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

The noble Baroness invites me to speculate on operational policing. As we discussed many times from this Dispatch Box recently, I cannot and will not do that. What I can say is that, in my understanding, some of the context around previous arrests is that they are more to do with breach of PSPOs than with the behaviour that she describes. In that case, I think it was repeated breach of a PSPO, so I am not sure that she is completely correct in her assertion, but I take her point.

[Lord Pannick (CB)]

My Lords, the Minister spoke earlier about the need for the guidance to address an appropriate balance. He spoke a few moments ago about the relevance of freedom of religion and freedom of expression. Was not the whole point of the parliamentary debates earlier this year to specify in legislation where the balance lay? Surely it is therefore time to get on with implementing it.

[Lord Sharpe of Epsom (Con)]

Again, I have tried to explain the context. I do not think those two things are entirely mutually exclusive. The fact is that some of the language in the law is relatively unusual. Therefore, the consultation is necessary to make sure that people are aware of what it is.

Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Lord Pannick Excerpts

Tuesday 13th June 2023 Lords Chamber

[Lord Rooker (Lab)]

Anyone can look at what has been happening this week. It has been misleading. The fact is that we are in a democracy and we are an unelected House. Our job is very simple: we just ask the other place to look at things again and again. At the end of the day, it has to own the decision. How can it go to the public in a general election if there are decisions that it cannot own? That is our present system and no one has come up with a plan to change it at this time.

[Lord Pannick (CB)]

My Lords, I support both amendments before the House—that tabled by the noble Lord, Lord Coaker, and that tabled by the noble Baroness, Lady Jones. I do so because, as the noble Lord said, this is a constitutional outrage.

I take that position even though I have great sympathy with the Government’s position on the substance of these regulations. They are absolutely right to say that those who demonstrate are not entitled to inflict more than a minor hindrance or delay on those going about their daily business. Whatever the merits for which the demonstration is held, protesters need to recognise that their rights to freedom of expression and assembly are not the only rights in play. The noble Baroness, Lady Jones, says that this is an authoritarian law. It is not. Members of the community have the right to get to work, take their children to school and attend hospital appointments without being caught in a traffic jam caused by protesters sitting in or walking slowly along a road with the very purpose of disrupting the lives of other people. That is simply outrageous.

However, the issue tonight is whether we approve regulations that defy the will of Parliament, as expressed by this House when we voted down on 7 February Amendment 48 of what is now the Public Order Act, in the light of which Amendment 49 was not moved. I voted with the Government on Amendment 48, and I was in the minority. As we have heard, they are now bringing forward regulations to achieve exactly the same objective. Respectfully, it is all very well for the noble Lord, Lord Rooker, to talk about the other place being the dominant House, which it is, and say that we must give way to it, but we should not do so when there is a constitutional outrage, and not when, as we all know, scrutiny of regulations is cursory at best.

The Government know very well that they can bring forward regulations which we cannot amend and that the normal practice of this House is not to vote them down on a fatal Motion. How is that democratic? How can it be democratic that one of the Houses of Parliament is unable to express its view in relation to the substance of this matter?

[Lord Reid of Cardowan (Lab)]

With respect, no one is trying to stop this Chamber expressing its view on this or anything else. What it is trying to stop is the assumption that it is this Chamber that makes the final decision. It is not. It is essential for the maintenance of the constitutional arrangements we have that we always respect the elected House, which, as my noble friend said, has to own those policies because it is directly responsible to the electorate. So it is not about discussing, it is not about revising, it is about who takes the final decision.

[Lord Pannick (CB)]

I totally understand that, and it is customary in this House to ask the other place to think again. I am not suggesting that we should have the final word; I am suggesting that tonight we should vote down these regulations and invite—require, ask—the other place to think again and to consider whether it really thinks it appropriate to proceed by way of what we all agree is a constitutional outrage, as the noble Lord, Lord Coaker, said. There are occasions when we have to stand up for constitutional principle, and this is one of them. If the other place sends it back again, no doubt we will give way because it is the elected House, but we are entitled to express our view in an effective manner. It is all very well regretting, but it has no effect whatever.

I agree with the comments of my colleague Tom Hickman KC and his co-author Gabriel Tan in the blog that they put on the website of UK Constitutional Law Association. They wrote, and they are right, that the Government are seeking to obtain through the back door of Parliament what they have been denied at the front door. It is, they say, a

“remarkable act of constitutional chutzpah”,

and they are absolutely right.

It does not stop there because, as the noble Lord, Lord Hunt, rightly said, the original Explanatory Memorandum to these regulations—I have not seen today’s amended, improved version—nowhere mentions that these amendments were defeated when they were proposed to the Public Order Bill. It is worse than that, as the noble Lord, Lord Hunt, knows, but it is astonishing that the Explanatory Memorandum at paragraph 3.1, under the heading “Matters of special interest to Parliament: Matters of special interest to the Joint Committee on Statutory Instruments”, has this entry: “None”. Is that not extraordinary? Does it not demonstrate the contempt which the Government have in this context for the proper processes of legislation in these matters?

[Lord Brownlow of Shurlock Row (Con)]

I have been here for only four years, and I am still learning. The noble Lord said earlier that if this statutory instrument is voted down, the other House could be asked to think again and it could bring it back. My understanding is that a statutory instrument cannot be brought back.

[Lord Pannick (CB)]

The Government can table a new statutory instrument any time they like. They are perfectly entitled. They can table a statutory instrument and invite us to consider it—or, far better than that would be to produce primary legislation which we can debate properly and can amend if we think it appropriate to do so and which will then go back to other place for it to consider.

If it does not agree with us, we will, I am sure—as the noble Lord, Lord Reid, rightly said—follow our customary practice and give way, because it is the elected House. What is so objectionable about this is that all of those procedures are removed. All we can do, as he said, is express regret: we are very sorry about this. Well, I express regret that the Labour Front Bench is not prepared to see through the implications of its own view that this is a constitutional outrage. It is something that we should stand up against and vote against.

[Viscount Hailsham (Con)]

My Lords, with little exception, I agree with what the noble Lord, Lord Pannick, has said. I start by having considerable sympathy with the motives that have caused the Government to come forward with this statutory instrument. However, for the reasons that were advanced by the noble Lord, Lord Coaker, I feel that the process is very defective. However, again, for constitutional reasons, which I shall mention very briefly, I cannot support the fatal amendment.

That, in summary, is my position; if I may, I shall elaborate a little further. So far as the motives of the Government that lie behind the statutory instrument are concerned, I share very many of these views, as indeed does the noble Lord, Lord Pannick. In a free society, individuals have a right to demonstrate. However, their fellow citizens have a right to go about their daily business without unreasonable obstruction. I fear that, increasingly, we are seeing on the part of demonstrators a disregard for the obligations they have to their fellow citizens.

So I can well understand the motives that activate the Government in bringing forward the changes in the statutory instrument. However, for the reasons advanced by the noble Lord, Lord Coaker, I have very real reservations about the process that is being adopted. The process and its defects were identified by my noble friend Lord Hunt of Wirral. He is entirely right, and his report is extremely direct on the subject. The statutory instrument is in fact designed to reverse the defeat in this House earlier this year.

If that is a desirable thing to do, it should be done by primary legislation. That is the point made by the noble Lord, Lord Pannick. Amendments made to a Bill by this House on Report can always be considered further in the House of Commons and, where appropriate, they can be the subject of ping-pong; that is the proper way forward.

A statutory instrument is an unamendable legislative device and, in my view, one that should not be used to make significant changes to the law, in particular to the criminal law. So one needs to go to the purpose of this statutory instrument. The Home Secretary set it out in yesterday’s debate in the House of Commons. At column 55, she set out the four purposes of the instrument, and said later, of the police, that

“we are trying to clarify the thresholds and boundaries of where the legal limit lies, so that they can take more robust action and respond more effectively”.—[Official Report, Commons, 12/6/23; col. 74.]

Now, that raises at least two pertinent questions. Either this statutory instrument, in effect, does no more than tidy up existing legislation and ensure that existing case law applies equally across the statutory waterfront, or it is intended to make significant changes to existing law. In the first case, it must be doubtful whether the statutory instrument is required; in the second case, if, as I suspect, the statutory instrument does make substantial changes to existing law, it should be done by primary legislation—and that is what this House intended to do in January.

So, finally, we get back to process, which is fundamental to tonight’s debate. I share all the reservations expressed in the amendment of the noble Lord, Lord Coaker. They constitute good reasons why the procedure adopted by the Government is flawed. I would like to think that if the amendment is passed—and in all probability, I will vote for it—the Government will withdraw the statutory instrument and resort to primary legislation.

I am afraid that I cannot support the fatal amendment moved by the noble Baroness. Here, I find myself in agreement with the views expressed by the noble Lords, Lord Reid and Lord Rooker. The House of Commons passed this statutory instrument last night by a very substantial majority. The fatal amendment has a much more dramatic consequence than those occasions when the House amends a Government Bill. In such cases, the Bill can be further considered by the Commons. However, if this House carries the fatal amendment, the statutory instrument is killed. That goes beyond that which an unelected House should in general do.

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[Lord Lisvane (CB)]

My Lords, I make no comment on the merits of the policy that this proposal would introduce; it is the manner in which the Government have proceeded that has caused me, as it has my noble friend Lord Pannick, great concern. The Home Office has behaved in a way for which I can find no kinder word to use than “disreputable”.

For a start, the Explanatory Memorandum—whichever edition we are in now—did not mention the fact that the proposal had been rejected by your Lordships. When the committee quite rightly inquired why that was not mentioned, the reply could have won an Oscar for weasel wording:

“The details that have been included … are those which we … considered relevant to the document”.


When you are caught bang to rights, the proper response is an apology, not an obfuscation. Yet more astonishing —my noble friend Lord Pannick has already referred to this—is that in the section of the Explanatory Notes outlining anything that might be of interest to Parliament or the JCSI, the single word “None” appears.

Then there is the question of consultation. The Home Office ignored the Government’s own consultation principles and consulted on a selective and skewed basis. It brought to mind the Sellar and Yeatman description of the passage in Magna Carta which they alleged said:

“No baron should be tried, except by a special jury of other barons who would understand”.


In this case the Home Office set out to consult a selection of people it knew would support it, not those who might have a different view. A kind description would be that that was “not straightforward”.

Tom Hickman KC, the professor of public law at UCL, who has already been mentioned, pointed out:

“Where a public authority chooses to conduct a consultation process, that consultation must be conducted properly and fairly”.


He pointed to a ruling by the Court of Appeal that a consultation conducted before certain Covid-19 regulations had been unlawful because it had been conducted on an entirely one-sided basis. I do not see how the consultation carried out by the Home Office in this case could be described as proper and fair.

This instrument and the Explanatory Memorandum —again, whichever edition you care to quote—must have been signed off by a Minister. I think we might be told which Minister it was, and which Minister took the view that this was an appropriate way to treat Parliament. I hope the Minister here will be able to tell us. I do not want to see, and I am sure your Lordships do not want to hear, any pabulum about collective responsibility.

As I suggested earlier, I do not take a view about the merits of what this instrument would achieve. My concern is for the way in which Parliament is being treated and for the apparently resentful and sullen way in which the committee’s questions have been answered.

I am sorry—and I do understand what the noble Lord, Lord Coaker, was saying earlier on—that His Majesty’s Opposition do not wish to go further than regretting what is in front of us. Governments shrug off regrets; they make no difference. As the noble and learned Lord, Lord Judge, said in the Queen’s Speech debate last year, if we make no difference, why do we not just go on talking? Incidentally, I should tell your Lordships that, in my recent email conversations with the noble and learned Lord, we have focused on England’s chances in The Ashes, and I know that we all send him our warmest good wishes in his convalescence.

This brings me to the fatal amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb. At this point, it is very important to recall that it is a very easy thing for a Government to withdraw an SI, redraft it, relay it and start the process again. It is also—and, of course, the business managers will balk at this—not that difficult to achieve a change by primary legislation in a relatively short time. As some noble Lords have said, that is actually the right way to proceed. It is not just what you want to achieve: it is the propriety of the means that you use to get there. If noble Lords do not want this sort of thing to happen again, we should vote it down, so if the noble Baroness presses her amendment to a Division, I shall support her.

[Lord Pannick (CB)]

May I ask the noble Lord whether, with all his decades of experience of parliamentary procedure, he has ever seen a set of regulations that so defies constitutional propriety?

[Lord Lisvane (CB)]

I think the noble Lord will know the answer, and it is no.

Electronic Passport Control Systems

Lord Pannick Excerpts

Wednesday 7th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

As the noble Lord well knows, 95.9% of recorded wait times in the first three months of 2023 were within published service standard. The UK border system has, as I have already said, a highly resilient e-gate infrastructure, with circa 65 million passengers being processed in the year to May 2023. There are currently 288 e-gates operational, comprising 22 at air and rail terminals, including in Paris, at Gare du Nord, and Brussels, at Gare du Midi. From April 2011 to June 2021, e-gates processed 258 million passengers through the UK border. As the noble Lord will see, it is a highly effective addition to our UK border infrastructure.

[Lord Pannick (CB)]

My Lords, the Minister said there was an issue. Will he give the House a hint as to what this issue was and who was responsible for it?

[Lord Murray of Blidworth (Con)]

The noble Lord asks a fair question. However, as he probably knows, it has never been government practice, for reasons of law enforcement, to comment on operational issues relating to border security and immigration controls. This includes offering commentary on the performance of border systems and e-passport gates specifically. The e-gates process passengers arriving in the UK, and provide a secure border check on approved travel documents, and refer passengers to an officer if required. The current e-gate estate was upgraded in 2021. Incidents impacting the availability of e-gates are proactively managed, and lessons are learned. They have certainly been learned from this most recent incident.

National Security Bill

Lord Pannick Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, I added my name to some of the amendments tabled by the noble Lord, Lord Marks. I echo his thanks to the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Sharpe, for their constructive engagement with us on the damages clauses. I too am satisfied that Amendment 169, in particular, and the assurance that the noble and learned Lord gave in writing—which I hope he will repeat on the Floor of the House—address the main concern. I am impressed also by the eloquent point he made in Committee, that these clauses simply confer a power, or discretion, on the court, and I am confident that the courts will exercise those powers fairly and sensibly.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I am extremely grateful to the noble Lord, Lord Marks, for his amendments, and to the noble Lord, Lord Pannick, for his comments. I hope the House will agree that the Government have been in listening mode throughout this Bill, and that we have in this particular instance moved quite considerably to deal with what the Government consider to be justified observations by your Lordships.

On the general point, the reforms are designed to protect the public, to deter those who seek to exploit our security services for compensation and to reduce the risk that court awards or damages may be used to fund terrorism—perhaps the most serious harm that can be perpetrated against society, going to its very fabric. The noble Lord, Lord Marks, asked me to restate the purpose of the clause and I think I have endeavoured to do so in those words.

On whether the Government can give any assurance that these provisions will not be invoked on the basis of

“unproven allegations … from a foreign state”,

I draw your Lordships’ attention to the fact that this is a power in the court; it is entirely in its discretion. No court is going to act on anything other than proper evidence, so in the Government’s view there is no risk of the danger to which the noble Lord, Lord Marks, referred, because this is a court process with rules of evidence and proper and fair procedures.

With those two preliminary observations, I come to the central point that was at issue when we discussed this clause in Committee. We have listened to the concerns expressed by noble Lords that the legislation needed to ensure that no national security case fell into scope where there was no connection between the Crown’s conduct and the terrorist conduct of the claimant. I can repeat before this House the assurance in the letter I sent noble Lords today, to which we have already been referred, saying that there needs to be a causal connection between the conduct of the terrorist and the reduction in damages.

As to what criteria the courts should apply when considering these issues, I know that noble Members felt the courts would require further guidance. In the Government’s view, the courts do not require further guidance; they are well able to interpret and apply this legislation, especially in light of the amendments we have proposed. The Government have every confidence in the court being able to discharge its functions under these provisions.

Our courts are well versed in taking a wide range of relevant factors into account in determining liability and assessing the level of damages. There are a number of common-law considerations to which noble Lords referred in Committee which may indeed provide some guidance. We do not seek to exonerate the Crown in respect of its own culpability; we aim simply to ensure that the terrorist conduct is properly taken into account when calculating quantum.

I turn to what I think are the only live amendments on this part, Amendments 174 and 175. Those amendments would apply to the Bill’s provisions whereby a court would consider the context in which the Crown had acted to reduce a risk of terrorism, but their underlying intention seems to the Government to be to markedly restrict those provisions. As I understand it, the amendments seek to limit the consideration of the court to where the Crown’s actions had been commenced —the provisions use the word “instigated”—and the conduct was required to have taken place overseas at the instigation of a foreign state.

While the Government accept that there are difficulties in preventing terrorism when the action concerned needs to be taken overseas, there are so many different facts and circumstances flowing from the claimant’s own actions that the proposed amendments would significantly limit the effect of these clauses. In the Government’s view, the courts ought to have complete discretion to apply the clauses as they stand; a very tight restriction both as to instigation and to the requirement that the instigated conduct took place overseas would limit them inappropriately and improperly restrict the discretion courts should have under the provisions.

The Government further feel that there is scope in these amendments for some confusion. The two aspects, an overseas element and instigation, seem to be couched in language reminiscent of an exclusive list, quite apart from the difficulty of deciding exactly what one means by “instigation”. In practice, the Government feel that the courts should be left to exercise their discretion, as they surely will, without the limitation proposed by these amendments. That is the Government’s position on the amendments proposed by the noble Lord, Lord Marks, and I hope that in the light of what I have said, he will consider not pressing them.

There is one amendment by the Government—Amendment 181—which is proposed to ensure family proceedings in Scotland and Northern Ireland are excluded from the freezing and forfeiture provisions that are also part of this part, as with those in England and Wales. That simply corrects an oversight in the original drafting.

Having set out the Government’s amendments and why we are unable to accept the amendments proposed by the noble Lord, I commend Government’s amendments and ask the noble Lord to withdraw his.

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[Lord Pannick (CB)]

My Lords, I have added my name to amendments in this group. I declare my interest as a practising barrister, sometimes representing clients on legal aid. The harmony that has broken out in this afternoon’s debates does not apply to this group, although I do thank the Minister, the noble and learned Lord, Lord Bellamy, for engaging with me and others on this subject and for tabling an amendment that mitigates, to a limited extent, the mischief of Clause 89.

I will first cite some history. At the legal aid Bill’s Second Reading on 15 December 1948, the Attorney-General, Sir Hartley Shawcross, told the House of Commons that civil legal aid was so important because it would

“open the doors of His Majesty’s courts and make British justice more readily accessible to the great mass of the population who hitherto have too frequently, I am afraid, had to regard these elementary rights—as they ought to be—as luxuries which were beyond their reach”.—[Official Report, Commons, 15/12/1948; col. 1223.]

Sadly, the scope of legal aid has been much reduced in recent years by Labour Governments, Conservative Governments and by the coalition Government. But, where civil legal aid is still available, it remains a vital legal protection for individuals and their families. It is a noble scheme that goes some way, although not far enough, towards ensuring that a lack of financial resources is not a bar to access to justice. So it is objectionable in principle for the Bill to propose to remove eligibility, even subject to exceptions, for a category of people who are defined simply by the nature of the criminal offence of which they have been convicted.

Clause 89 is simply indefensible for three main reasons. First, it will apply irrespective of the seriousness of the criminal offence of terrorism of which the individual is convicted, so long as that offence is capable of being punished by up to two years’ imprisonment. The noble Lord, Lord Anderson of Ipswich, who cannot be in his place, pointed out in Committee that terrorism offences include such matters as

“inviting … support for a proscribed organisation”

and

“‘failure to disclose professional belief or suspicion about’ the commission of terrorist offences by others”.—[Official Report, 18/1/23; col. 1868.]

Now such criminal conduct is wrongful, but it may, and often does, lead to a short custodial sentence or even a community sentence. But, under Clause 89, any such conviction excludes a person from civil legal aid, subject to narrow exceptions, for 30 years, whatever sentence the court thinks is appropriate in the circumstances of the individual case. This is indefensible, and it is particularly so when, as the noble Lord, Lord Anderson of Ipswich, also pointed out, the recidivism rates for terrorist offenders are very low indeed: he gave the figure of 3%.

The second reason that Clause 89 is simply indefensible is that there is no exclusion from civil legal aid for those convicted of murder and rape, people who may receive life sentences and who normally receive very serious sentences for their offence. To single out terrorist offences, and to do so irrespective of the gravity of the individual offence, suggests to me, and I may not be the only one in this House, that the Government are more interested in political gestures than they are in pursuing any coherent principle.

The third reason that Clause 89 is simply indefensible is the one given by the noble Lord, Lord Marks: it will exclude persons from civil legal aid in cases which have no connection to the offence of terrorism of which they were convicted. A woman may be convicted of giving support to a proscribed organisation and receive a short custodial sentence or a community sentence, but 10 or 20 years later, she may be evicted, or face eviction, from her flat and face homelessness. The idea that she should be denied civil legal aid—and denied eligibility for civil legal aid—because of the terrorist conviction frustrates the very purpose of civil legal aid in a civilised society. Let us suppose the terrorist offender is beaten up in prison by prison officers—it does happen. Should he be excluded from eligibility for civil legal aid if he otherwise satisfies the relevant criteria? The idea that this proposal is brought forward by a Ministry of Justice defies credulity.

The only question in my mind is how best to remove or dilute the stain of Clause 89, and the Marshalled List contains a number of possible amendments, to some of which I have added my name: that Clause 89 should not stand part of the Bill, that it should be confined to those who are sentenced to seven years’ imprisonment or more, or that it should be confined to legal aid for a matter connected to the terrorism offence, which is the amendment preferred by the noble Lord, Lord Marks.

I am very sorry indeed that the Labour Front Bench is unwilling—as I understand it; I would welcome correction from the noble Lord, Lord Ponsonby—to support any of these amendments, and has itself tabled what can only be described as a weak amendment, Amendment 188A, which would require a review within 60 days of Clause 89 coming into force. The noble Lord, Lord Ponsonby spoke eloquently about Clause 89 in Committee; he is far too sensible and fair-minded to think personally that Clause 89 makes any sense. I assume, although I welcome correction, that the Opposition in the other place fear that they will be accused of being soft on terrorism if they support any of the substantive amendments. I think we all know what Sir Hartley Shawcross or the great Labour Home Secretary, Roy Jenkins, would have said about that.

If, as I hope, the noble Lord, Lord Marks decides to test the opinion of the House on one of these amendments, he will certainly have my support.

[Baroness Ludford (LD)]

My Lords, I can speak briefly because my noble friend Lord Marks and the noble Lord, Lord Pannick, have spoken forcefully on this matter. The amendments to remove Clauses 89 and 90 are in my name and signed by the noble Lord, Lord Pannick. I spoke at some length on this in Committee, and I believe it is a matter of principle—a very flawed principle, as the noble Lord, Lord Pannick, said—to bar anybody with a terrorism offence, however minor, from being granted civil legal aid.

The noble and learned Lord, Lord Bellamy, admitted in Committee that this proposal was “symbolic”— I think he said it more than once. In other words, it is gesture politics. The hope must be, as the noble Lord, Lord Pannick, just said, to paint those of us opposing it as somehow soft on terrorism, but I put it to the Government that they could be regarded as soft on murder, rape and sexual offences. They are apparently content that major offenders against women, of the likes of Wayne Couzens and David Carrick, variously guilty of abduction, rape and murder, could one day be eligible for civil legal aid, but not someone who is a minor offender under terrorism laws. If they try to throw at us in the Daily Mail that we are soft on terrorists, the Government ought to be prepared for a counter charge that they are soft on murderers and rapists. Given the huge public concern in recent weeks, months and years about the volume and the type of offences against women, I do not think that the Government are going to come out of this well.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we in the Opposition are accepting the principle that terrorism is uniquely terrible and needs to be dealt with in that way. However, my amendment calls for a review of the impact of this on certain lower-level cases.

[Lord Pannick (CB)]

The noble Lord is being patient, but what is there to review? Why has he not put down an amendment that simply excludes from this objectionable clause those who are convicted only in circumstances that lead to a non-custodial sentence? That surely is the logic of what he is saying. Why do we need a review?

[Lord Ponsonby of Shulbrede (Lab)]

We need a review because we do not know what the impact is unless we have looked at the data. It seems to be as simple as that.

Public Order Bill

Lord Pannick Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Pannick (CB)]

The noble Lord spoke about legal certainty. Could he help the House on how a court is to determine whether disruption is “prolonged”? If there is locking on and I am unable to take my child to school or my mother-in-law to hospital for an hour, two hours, or 10 hours, is that prolonged?

[Lord Coaker (Lab)]

That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.

Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.

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[Lord Anderson of Ipswich (CB)]

I am conscious that an expert musician will certainly know the difference between minor and major. I take refuge in the fact that there is no such amendment before us, so perhaps I do not need to answer that today.

[Lord Pannick (CB)]

My Lords, the right to protest in a democracy is of central importance, but I cannot see that there is much of a right to glue yourself to another person or object in order to disrupt the daily lives of other people. That is what we are talking about here. There are many ways of protesting in our democracy without locking yourself on—without disrupting the lives of others. The conduct with which these clauses are concerned is very often, as the noble Baroness, Lady Jones, accepted, for the very purpose of disrupting the lives of others. I think that such conduct should not be unlawful, as Amendment 1 proposes, only if it causes prolonged disruption.

Preventing people going to work or taking their children to school or relatives to hospital should be unlawful. That is, as far as I can see, more at the minor end and sufficiently strong to outweigh the interests of the protesters, as the cases cited by the noble and learned Lord, Lord Hope, demonstrate.

I suggest that the House bears in mind one further point. There is a danger, when we consider all these amendments, that we do so by reference to protest with which we may sympathise—maybe environmental causes. But the protest may also be by those whose causes are far less attractive and far more damaging to a democratic society. Such protesters may also decide to lock on, and the law needs to deter and penalise them.

[Lord Hogan-Howe (CB)]

My Lords, I would like to think about how we got here. First, there has been a series of events over the past few years during which people criticised the police, the CPS and the Government for not intervening when people were seriously disrupted. That is why we are having this debate. We could go through various cases, whether it is Heathrow, the M25 or the taxis around Parliament Square, when the drivers were kind enough to leave a lane around the outside; that was their decision, a point I shall come back to. Therefore, people have complained that the police have not been intervening.

One reason why the police have not been intervening concerns the offence that they usually rely on: obstruction of the highway, which is a very simple and absolute offence. There is no intent to be proved; all that needs to happen is obstruction of the highway. The Supreme Court has had to consider that simple offence, and it concluded that there was more to consider than whether the highway was blocked. It asked whether there was an alternative route and other action could have been taken by the police. There was lots of talk about intent in respect of what is really a very simple offence. Usually the penalty is a fine; very rarely is imprisonment imposed.

The second reason why this issue is having to be considered is that the public have got angry and sometimes started to take action themselves when the police have not, which is always dangerous. We can all recall seeing film of someone sat on the top of a tube carriage and the crowd dragging him off. That is very dangerous for everybody involved—a terrible situation, and it should not happen. We have seen cases where the motorways have been blocked, and the people at the front have started to intervene because they are fed up with waiting. It appears that nobody is going to do anything and, in any case—

Rape: Operation Soteria

Lord Pannick Excerpts

Monday 23rd January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

Absolutely—I can give that assurance. I am also going to go on to one of the reasons why it was a little difficult in the past to prosecute some of these cases; it was to do with the attrition of victims from the process. In the year ending June 2022, 62% of adult rape offences ended up not being supported for further police action because the victim withdrew. There were a number of complicated reasons for that but, obviously, it is necessary to collect the data which supports that.

[Lord Pannick (CB)]

My Lords, Professor Betsy Stanko’s report on Operation Soteria, which was published on GOV.UK last month, had two other key findings in addition to those mentioned by the noble Lord, Lord Ponsonby. She found that investigators and other police staff lack sufficient specialist knowledge about rape and other sexual offending. She also found that disproportionate effort has been put into testing the credibility of the victim, and that there is a need to rebalance investigations to include a more thorough investigation of the suspect’s behaviour. Can we see action on both of those points?

[Lord Sharpe of Epsom (Con)]

Action is being taken on both of those things. The noble Lord is completely right about specialist knowledge, and this finding is now being applied in South Wales Police and the Met, two of the pioneering forces in Operation Soteria. Structural changes have been introduced in Durham, another of the pioneering forces. That has improved shift patterns, supervisor ratios and so on, which will enhance officer and organisational capability.