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.

National Security Bill

Lord Pannick Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I think we need to remind ourselves that the United Kingdom is a party to the torture convention. The amendment in the name of the noble Lord, Lord Purvis of Tweed, raised a red flag in my mind because, when I saw the word “torture” and the implication in his amendment that Clause 28 as it stands could extend to granting immunity for acts of torture, that seemed to me plainly contrary to our obligations under the torture convention.

It is worth remembering two things about that convention. The first is that all states parties to it are prohibited from authorising torture in any circumstance. It is also an unusual convention because it creates a universal jurisdiction; in other words, any state party which finds somebody who has committed torture within its jurisdiction, wherever he comes from, can prosecute that individual for the act of torture. The idea of granting immunity from acts of torture, which is what this clause seems to do, is a false idea because you certainly cannot do that with regard to other states parties to the torture convention.

It seems to me that Clause 28 is fraught with danger for that reason. Therefore, I very much support the amendment in the name of the noble Lord, Lord Anderson.

[Lord Pannick (CB)]

My Lords, may I add one footnote to the powerful speeches by my noble friends on these Benches? To confer blanket immunity may well have a counterproductive consequence, which is that the alleged victim may well be able to provoke the procedures of the International Criminal Court to be applied against persons in this jurisdiction. That would be extremely unfortunate.

[Baroness Manningham-Buller (CB)]

My Lords, I had not intended to say anything on this part of the Bill, not least because all these lawyers at various levels of leading counsel, pupil-master and so on do so much better than me. It seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law.

I think that the noble Lord, Lord Purvis—the Minister may deal with this in his summing up—has confused the authorisations that are approved for CHIS activity involving criminality with what this part of the Bill seeks to do. I hope that in his reply the Minister will acknowledge the wide concern within the Committee, including from people such as me who have spent a career in the Security Service, and will consider an amendment to address some of these problems.

I quite comprehend that it is not necessarily easy to explain what the problem is that we are trying to address without revealing secrets but, again, I endorse the view that it would be helpful to hear what the ISC has thought on these matters. We heard from the noble Lord, Lord West of Spithead, at an earlier stage, that he and the ISC recognised that there was a problem that needed addressing. For my part, I am unable to support this as a solution.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I see where the noble Lord is coming from and, yes, I accept that.

I return to the reasonableness defence in Section 50. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable, the application of the reasonableness defence to UKIC’s activity is untested.

I come back to one of the earlier points from the noble Lord, Lord Carlile. I am not aware of any prosecutions, but he will know that I cannot comment on operational matters.

I also come back to the questions about the CPS. The fact that the CPS would not be obliged to prosecute offers little comfort to those carrying out legitimate work on behalf of His Majesty’s Government, who may still be subject to criminal investigation for carrying out authorised activities in the interests of national security. The Government consider that we should be able to offer legal reassurance to individuals carrying out vital work to support those interests.

I finish by reiterating that I am committed to continuing to work with the experts in this House, particularly the noble Lords who have tabled the amendments we have debated, and those in the other place to reach consensus on Clause 28. I thank all noble Lords for their patience as we move towards that shared objective.

I have noted the comments from the noble Lord, Lord Coaker, on timeliness but, at the moment, the Government cannot support these amendments and I therefore respectfully ask noble Lords not to press them.

[Lord Pannick (CB)]

Before the noble Lord sits down, could I see whether I have understood him correctly? Is he saying that an act of torture or sexual offences committed in support of another country’s services could not be a proper exercise of the functions of the Security Service—the SIS—or GCHQ? If he is, would it not be better to have that on the face of the Bill rather than simply as a statement from the Minister?

[Lord Sharpe of Epsom (Con)]

That is what I am saying. I will come back to whether it should be on the face of the Bill in due course.

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[Lord Faulks (Non-Afl)]

My Lords, I will not be disclosing quite as much as the noble Lord, Lord Wallace, did, but I will disclose that I am the chairman of the Independent Press Standards Organisation, and it is in that context that I want to add a few remarks. I am also grateful to the noble Baroness, Lady Jones, for her amendment giving those of us who are concerned—I am sure that I speak for the whole Committee—about the potential effect, no doubt unintended, that the Bill might have on press freedom. I do not want to rehearse all that has been very well set out by the noble Lord, Lord Black, and the noble Baroness, Lady Stowell. What is vital, of course, is to think what potential chilling effect this might have on journalism, particularly public interest journalism.

One point that is perhaps worth emphasising is how expensive public interest journalism is, how heavy it is on resources and how easy it is for editors to say: “Look, this is far too difficult; you may not get what you want, it is expensive, and what is more it may be unlawful.” If you look at Clause 3(2) of the Bill, and are thinking about running a story to do with armaments, as the noble Baroness, Lady Stowell, said—I think that she was probably referring to the Snatch Land Rover issue; she confirms that that was the case—then you might well say to yourself that this is highly risky, because we are going to run a story about something which would be of interest to a foreign power with which we might be in conflict. It is just that sort of thing which this, in the absence of some sort of tailored amendment to the Bill, would have the unintended consequence of not just putting a journalist at risk but of somebody simply saying that they are not going to do the story or spend money on this.

So I hope that the Minister, who is otherwise preoccupied at the moment, may be able to consider these matters carefully, knowing how important public interest journalism is. I should say that I received some briefing from the Guardian. Although IPSO regulates 97% of those publications that we receive, it does not regulate the Guardian, so this does not in any way influence the job that I have.

[Lord Pannick (CB)]

My Lords, I share the concerns which have been expressed in this debate about the breadth of Clauses 29 and 30, particularly in relation to public interest journalism, as expressed by the noble Lords, Lord Black and Lord Faulks, and the noble Baroness, Lady Stowell.

One of the problems is that Clause 29(2)(c) ensures that the foreign power condition applies merely because there is

“other assistance provided by a foreign power”.

That is an incredibly broad definition. The provision of information would potentially fall within the scope of that definition. There is also the concern, which has been explained by the noble Lords, Lord Marks and Lord Wallace, that the foreign power definition in Clause 30(1)(e) extends to a political party—not just to political parties generally but, as Clause 30(2) makes clear, to any party which has any member of the Government in a coalition. So it extends very broadly, particularly in Europe, to any number of political parties.

The noble Lord, Lord Marks, made the point that one of the mischiefs here is that there is no attempt to exclude governing parties in our allies—NATO countries, Australia, New Zealand and Five Eyes countries—which is quite extraordinary. The anomaly is even greater, because if the Committee looks at Clause 30(3)(a) there is a specific exclusion for any political party which is

“a governing political party of the government of the Republic of Ireland”.

I would be very grateful if the Minister could explain why there is that specific exclusion —not that I have anything against the Irish—but not for any political party that operates in our other allies, particularly NATO allies. The anomaly is even greater, because it is not beyond the realms of possibility that, in the next few years, Sinn Féin may be a political party that is part of the Government of the Republic of Ireland, possibly in a coalition.

None of this makes any sense. Could the Minister please clarify, explain and reflect on whether this is really a sensible way to proceed?

[Lord Purvis of Tweed (LD)]

My Lords, I wish very briefly to follow that excellent point, because the Government have not been clear in ironing out the anomalies in the definitions. The noble Lord, Lord Pannick, and others are absolutely right in agreeing with the noble Baroness, Lady Hayter, who raised this point.

The reality is that a junior party in a coalition Government, which might be under some form of political arrangement that is different from ours and which could be one of our sister parties, could be considered to meet the “foreign power condition” in the Bill. A person’s conduct could then fall foul of Clause 29(5) if that person

“intends the conduct in question to benefit a foreign power.”

I would like to benefit my liberal sister parties’ prospects in other countries by working with them on a philosophical basis, and vice versa. That is why we exist as political parties. The Bill would consider that conduct to be intending to benefit a foreign power. That surely cannot be right for an open democracy when we want to encourage political parties.

Not only that: before the aid cuts, we were spending considerable sums of money through the Westminster Foundation for Democracy to develop political party links. So we have on the one hand the Government funding the WFD, encouraging and in fact paying and providing support to parliamentarians to work with sister parties, and on the other saying under the Bill, “By carrying out the work that we’re funding, you’re also aiding a foreign power”, which is nonsense. At the same time, there is a concern that, under the definition in Clause 30(1)(c), a foreign public sector broadcaster, for example, could be considered a foreign power under the Bill, so any journalists working with, say, CBC in Canada would fall foul of the Bill because that would be an “authority” of a foreign power, unless specific changes are made.

There is also the point that my noble friend Lord Marks made. Part of the anomaly is that the Bill creates too many difficulties for journalists of state broadcasters to operate and potentially has a chilling effect on sister party collaboration, which the Government themselves seem to promote and support, but at the same time it does not include private sector enterprises that, although they are not formally an agency or authority of a foreign Government and a foreign Government is not responsible for their affairs, could include a private sector sovereign wealth fund of a state, which might or might not be listed on a stock exchange and which may or may not, in effect, be a private sector arm of the interests of a foreign power. So any interaction we have through the strategic interests of a wealth fund of a Gulf state, or of a private sector enterprise that may or may not be established and fully operational in the private sector but which our intelligence agencies say is, in effect, an arm of or has some interaction with the Communist Party of China, is not covered.

The anomalies in the “foreign power condition” need to be ironed out. These amendments will help in that way. I hope the Government will be able to provide greater clarification.

National Security Bill

Lord Pannick Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I rise with some trepidation to disagree with these amendments, for reasons that I will try to give briefly. Amendment 8 and, indeed, all the others in the group are concerned with intellectual property. My entry in the register of interests discloses involvement with a strategy consultancy. In that role, we sometimes make ourselves available for the investigation of imposter frauds, for example. Many of those frauds can be connected with the attempted theft of intellectual property, not just by individuals and companies but by nation states. Some of those nation states are extremely big and powerful and have the capacity to make full use of the secrets they steal to become world leaders in the marketing of such goods.

I would suggest, with respect, that Amendment 8 shows a misunderstanding of the issue by the JCHR. Indeed, the reason why the proposed Clause 2(1)(ca)—Amendment 8—is not needed is that the reasons for this provision are well set out, in subsection (2)(b) in particular. This is for the protection of some very important and extraordinarily valuable intellectual property, which is created in, and in the interests of, this country. Indeed, if one looks at the other amendments, in particular those seeking to amend subsection (2), one has to think for only a moment to see the problem, and that these amendments defy that problem.

Let us take the example of a university computer science or physics laboratory where leading-edge research is being done or, to take something extremely topical, a vaccination laboratory where research is being done that could make a huge difference to humankind in general. As it happens, it could also make an enormous amount of profit for those creating the scientific inventions and, given the advantages they gain through taxation, for the Government.

It seems to me that the provisions in the Bill are absolutely needed to protect those scientists and inventors. There is a stage between the idea—which may come to someone in the bath or shower—and the production of a patent or copyright during which that idea is not protected by registration. These provisions precisely protect that intermediate area between the idea coming into the scientist’s head and its being registered and protected under the intellectual property legislation, which can be quite slow, very expensive and very complex.

So I respectfully suggest to those who have tabled these amendments that they are not needed and that, in fact, the Bill gives the right sort of protection precisely where it is needed, in the clause in question.

[Lord Pannick (CB)]

I respectfully disagree with the noble Lord, Lord Carlile. He may well be able to make a compelling case that there is a mischief that here needs to be addressed, but it is surely nothing whatever to do with national security, which is the subject of the Bill. The noble Baroness, Lady Ludford, is right that it is puzzling that there is no requirement in Clause 2 that it be established that the conduct in question is prejudicial to the safety or interests of the United Kingdom. The desirability of improving intellectual property law is really not an appropriate subject for a Bill of this nature.

Moreover, the noble Lord, Lord Carlile, says that if one looks at Clause 2(2)(b), that paragraph ensures the protection. I remind the Committee that all that Clause 2(2)(b) does is define a “trade secret” as information that

“has actual or potential industrial, economic or commercial value which would be … adversely affected if it became generally known”.

That is the loosest possible definition of a commercial trade secret. It is impossible to understand why matters of that sort should be dealt with in the Bill; indeed, that information may be enjoyed or owned by a foreign individual or company.

Trade secret law is very well developed. It includes remedies for damages and for injunctions. To include Clause 2 in the Bill would attract not just the considerable criminal penalties that the noble Baroness, Lady Ludford, referred to, it would invoke Clause 16, on the criminality of preparatory acts—

[Lord Davies of Gower (Con)]

My Lords, if this is an intervention, could the noble Lord make his point, please?

[Lord Carlile of Berriew (CB)]

The noble Lord asked to make an intervention, which is why I allowed him to, and I regret that he used the procedure of the House to make a speech. He will be free to make a speech if he wishes to do so.

[Lord Pannick (CB)]

My Lords—

[Lord Carlile of Berriew (CB)]

No, I am not letting the noble Lord in now. I am sure he will make a speech if he wishes to in a moment.

I will respond to the noble Lord’s intervention, if I may be allowed a moment to do so. His intervention completely misses the point. He seeks to impose upon us his definition of national security. I do not share his definition of national security. If there is theft by a major state overseas of important intellectual property that has yet to be registered and which could make a huge difference to this country, in my view that falls well within the definition of national security. Indeed, that is why the Government have chosen to include economic issues in the broad definition of national security. So I respect my noble friend’s intervention but I disagree with it. I shall listen very carefully to any speech that he makes—after I have sat down.

[Lord Pannick (CB)]

I am very sorry. I apologise to the noble Lord and the Committee; I thought he had sat down, and I was not the only Member of the House who thought so.

I have made my speech. The only point that I was going to add was that if we retain Clause 2, it includes the preparatory acts under Clause 16 and the powers of search under Clause 21. For all those reasons, I think Clause 2 should not be included in the Bill.

[Lord Wallace of Saltaire (LD)]

My Lords, the noble Lord obviously did not know that the noble Lord, Lord Carlile, had not sat down, but he perhaps ought reasonably to have known.

This exchange has focused my mind much more on the following question: part of the grey zone that we are dealing with is whether or not economic security is now part of national security. To a considerable extent, it is. I have not yet fully understood the relationship between the Bill and the National Security and Investment Act, passed last year, which deals with, among other things, some aspects of intellectual property. There may well be—but I am not sufficiently expert on it—a degree of overlap between that Act and what is proposed here.

--- Later in debate ---

[Baroness Ludford (LD)]

Of course; the example in the JCHR report was of a French national in the UK—an ordinary person working in a bar or a bank who alerts the French intelligence authorities to a terrorist threat in the UK. It may or may not be hugely realistic, but that would be criminalised, which does not seem very sensible. The focus of Amendment 16 is to add a test of

“prejudicial to the safety or interests of the United Kingdom”,

always with the caveat that we want that test to get further attention and elaboration.

Amendment 21 concerns the offence of entering a prohibited place, which is punishable by up to 14 years’ imprisonment. Clause 5 is about accessing a prohibited place where

“the person knows, or ought reasonably to know, that their conduct is unauthorised.”

There is no requirement in this offence for any prejudice to the safety or interests of the UK. The JCHR suggests that it is more akin to an offence of criminal trespass—it will have nothing to do with national security, unless there is some sort of test of national security.

All the amendments I have spoken to today are about tightening up definitions so that we do not inadvertently catch what ought not to be criminalised behaviour and avoid any clash with human rights under the HRA and the ECHR.

[Lord Pannick (CB)]

My Lords, I share the concerns expressed by the noble Lord, Lord Marks, and the noble Baroness, Lady Ludford, about the breadth of Clause 3, particularly Clause 3(1), and the absence of any requirement that the defendant intends that the conduct will prejudice the safety or security or defence interests of the United Kingdom.

The noble Lord, Lord Marks, gave a practical example relating to Mossad which I will not repeat. I have a concern because of my professional interest as a practising barrister, and I would welcome advice from the Minister as to whether I will be committing a criminal offence under Clause 3(1) if I give legal advice to a foreign intelligence service in carrying out UK-related activities. Clause 3(1) refers to “conduct of any kind”; it is a criminal offence, punishable with 14 years’ imprisonment, for me to materially assist a foreign intelligence service in carrying out UK-related activities. My advice, of course, may be to say to that foreign intelligence service, “You can’t do this in the United Kingdom, it would be unlawful, and you should be aware of that”, but what are the potential defences if I am prosecuted? Under Clause 3(7), it is a defence for me to show that I am acting

“in compliance with a legal obligation under the law of the United Kingdom which is not a legal obligation under private law”.

I am very doubtful that my actions as a practising barrister fall within that provision. It is a defence, however, under Clause 3(7)(b)

“in the case of a person having functions of a public nature under the law of the United Kingdom”.

I do not have that; I am a mere practising barrister. Clause 3(7)(c) relates to some agreement with the United Kingdom; that does not apply.

The only other defence that I could offer when I am prosecuted at the Old Bailey for giving legal advice is the exemptions for legal activity which are in Schedule 14, but they seem to me—and I would be delighted to be corrected if I am wrong—to be exemptions confined to the provisions to which we will come which concern requirements to register foreign activity arrangements and foreign influence arrangements. We are not talking about that; Clause 3 is not concerned with any of that. My question to the Minister is please can I be told whether the legal advice that I give as counsel to a foreign intelligence service falls within the scope of Clause 3(1). I raise this not just because I am very concerned not to end up at the Old Bailey but because that demonstrates that Clause 3(1) is far too wide. It really needs to be redrafted to ensure that it addresses only matters of national security.

[Baroness Manningham-Buller (CB)]

My Lords, I understand the wish of the noble Lord, Lord Marks, to define and narrow this part of the Bill. To a degree, I have some sympathy with him. I would like to answer the Mossad point and make a second point. For Mossad to operate in the United Kingdom, there would be an understanding that it should declare its activity. Therefore, I do not think this problem would arise unless it deliberately chose to conceal it, because it would be seeking support and help.

The second point is that if we make it too narrow about what British interests are, we will exclude those foreign intelligence services—including some of our friends—who act against their own citizens in this country, which we would regard as against British interests in the broadest sense though it does not directly threaten British interests. There is a range of activity that this Bill seeks to capture which is not absolutely directed against the UK but may be directed against other people here and which is unacceptable.

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[Lord Murray of Blidworth (Con)]

As I sought to explain to the Committee, the Clause 5 offence can be committed only where a person engages in the specified conduct in relation to a prohibited place that is unauthorised, and they must know, or ought reasonably to know, that their conduct is unauthorised. It is specifically the point, as I hope I alluded to in my remarks earlier, that the Clause 5 offence is the summary-only offence, which is intended to preclude unauthorised entry to prohibited places to avoid the risk of national security consequences.

[Lord Pannick (CB)]

Can I respectfully ask the Minister to write to me before Report, and place a copy in the Library, with a fuller explanation of why I would not be committing a criminal offence by giving advice to a foreign intelligence service? The noble Lord asked what advice; the very simple example I gave was being asked by a foreign intelligence service to advise it whether certain conduct would be unlawful in this country. Would it be a criminal offence for me to advise it on that? Grateful though I am to the Minister for his expression of the hope that I do not end up at the Old Bailey, I would like greater comfort than that. He did perhaps go a little far in suggesting that that would be the view of all noble Lords, but I am grateful for his personal assurance.

[Lord Murray of Blidworth (Con)]

I will endeavour to make sure that that letter goes to the noble Lord as soon as it is prepared.

Migration and Economic Development Partnership with Rwanda

Lord Pannick Excerpts

Wednesday 15th June 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I declare an interest as a practising barrister. Yesterday, in rejecting an application to stop the flight to Rwanda, the President of the Supreme Court, the noble and learned Lord, Lord Reed, said:

“In bringing that application, the appellant’s lawyers were performing their proper function of ensuring that their clients are not subjected to unlawful treatment at the hands of the Government.”


Do the Government agree with that? Will the Minister deprecate the criticisms of barristers and solicitors who have acted for asylum claimants in these proceedings, wherever they have come from?

[Baroness Williams of Trafford (Con)]

The noble Lord knows I am on quite delicate territory, because legal proceedings are ongoing. I repeat the earlier words of my right honourable friend the Home Secretary, who described our legal system as

“the best in the world.”

Nationality and Borders Bill

Lord Pannick Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I rise, I hope for the last time—a hope which will be shared by every Member of this House—to support this amendment. There are not many issues that it is worth going to the stake for, but surely the rule of law is one. I have spent 60 years of my life on it and do not propose to stop here. I suggest that your Lordships support this too.

This Motion as now put fully respects the sovereignty of Parliament, just as the Human Rights Act does. It is the one simple provision that is needed to ensure that questions about the legality of this Bill can be brought before our courts and decided by an independent judge, and it is surely the least contentious way of achieving that. Indeed, it is beyond logical objection. In truth, the only objection raised is that it is unnecessary —surely the weakest objection that one can ever produce. If we never passed a provision which was unnecessary, the statute book would be a good deal lighter and the better for it. But here, it is needed, unless Parliament—your Lordships’ House and the other place—is happy to oust the courts’ jurisdiction in the whole area of what constitutes a right to refugee status, to asylum sanctuary.

It did not appear seemly yesterday to intervene during the short contribution of—if he will allow me to call him this—my noble and learned friend Lord Mackay of Clashfern. My reverence for him is boundless, not least because 30 years ago he had the sagacity to promote me to the Court of Appeal. However, he surely cannot maintain that, because the Attorney-General advises, as she may well have done, that this Bill is refugee convention compliant, that is that and we should just buy into it without thought: that this would be a sufficient basis for putting the whole Bill beyond the purview of the courts. Think about Miller 2; think about the prorogation order. We were told very plainly, and none of us doubts, that Geoffrey Cox, QC and then Attorney-General, had said that this is perfectly lawful. But that did not put it beyond the courts. If ever there was a case for not putting compliance with international law beyond the courts, this surely must be it.

I will make three short points on the speech of the noble Lord, Lord Horam, yesterday, which attracted a rather ungenerous rebuke, although that is by the way. His first point was the general one that this is merely “an enabling Bill” giving the Government “power to do something”. That is surely not so in respect of the important group of clauses we are considering here, which, under the heading “Interpretation of Refugee Convention”, redefine it. Without our amendment, the courts would have no alternative but to apply those provisions, whether or not they are regarded as compatible with the convention. There is nothing by way of this being merely an enabling Bill; it is a declaratory Bill beyond question.

Secondly, the noble Lord, Lord Horam, reminded us of the five-page letter circulated by the then excellent Minister, whose ears must be burning already from the previous debate, and quite rightly, because his loss is a terrible one for us all. The letter set out the Government’s legal arguments for contending that these definition provisions can be viewed as convention-compliant. I have the greatest regard for the noble Lord, Lord Wolfson, and certainly there is not a soul at the Bar who could have made more persuasive arguments to that effect. But they are just that: arguments. They should not therefore, of themselves, necessarily win your Lordships’ support. Included among those arguments were many that had been roundly rejected in the course of this country building up a quarter of a century’s worth of plain, authoritative jurisprudence that decided the questions of what the refugee convention required, which the noble Lord, Lord Wolfson, acknowledged are now being overturned by the Bill.

Thirdly and finally, the noble Lord, Lord Horam, at col. 157 of yesterday’s Hansard, said that he fully agreed with the noble Lord, Lord Pannick, and myself,

“about the 2001 refugee convention”.

He called it the 2001 convention; obviously there is the 1951 convention. He continued:

“I do not want this Government to step outside that in any way. It would be a tragedy if that happened. It should not be allowed to happen; I believe that it will not happen.”—[Official Report, 26/4/22; col. 157.]


But surely he must accept that there needs to be scope, therefore, for somebody to look at it independently once the statute is enacted.

Finally, if we look at the front cover of this Bill, we will see a statement, required by the Human Rights Act, by the Minister—the noble Baroness, Lady Williams —which says, under the heading of the European Convention on Human Rights, that it is her view that

“the provisions of the Nationality and Borders Bill are compatible with the Convention rights”.

She may well indeed have been so advised by the Attorney-General, but surely nobody has ever doubted that that means that it is enough in itself; it is not. What the Act says is that you should try to construe it compatibly and if you cannot you declare it—precisely the mirror image of what is now proposed for this self- same legislation.

I urge your Lordships—not at this stage because it is so late in the day and the ping-pong ball has been returned two or three times already—to consider whether we really should quit on the constitutional issue on this vital rule-of-law question. At this stage, I urge the noble Baroness to divide the House on the issue and let it be supported by all those who want this country to abide by the rule of law.

[Lord Pannick (CB)]

My Lords, I support what was said by the noble and learned Lord. When this matter went back to the House of Commons last night, the Minister there said that the amendment from the noble Baroness, Lady Chakrabarti, was “unnecessary, inappropriate and unconstitutional”. What the Minister failed to recognise, with great respect, is that whether there has been compliance with the refugee convention has been a matter for the courts of this jurisdiction for at least the last 40 years.

Nationality and Borders Bill

Lord Pannick Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I rise to support Motion B1. “Nothing matters very much, and very little matters at all.” So said Lord Balfour of Balfour Declaration fame a century ago. But Lord Balfour was not then faced, as your Lordships now are, with a Bill which most—if not all—disinterested lawyers recognise that, first, without the amendment now proposed, would breach international law under the convention and, secondly, at the same time would nevertheless make unchallengeable the question of this legislation’s legality. Noble Lords should note that if the Bill passes without this provision, the legality of these provisions cannot even be raised before a court of law.

That will be the position unless we have the guts or—let me rephrase that—unless we are sufficiently alive to what surely is our constitutional duty as a revising Chamber to insist on the amendment to pass Motion B1. So, pace Lord Balfour, this really does matter very much.

I hope noble Lords will allow me another few words. I read again yesterday the disheartening, positively dispiriting House of Commons debate last week, which summarily rejected our amendments from the last round of ping-pong. The amendment originally in the names of the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, was dealt with even more dismissively and cursorily than the first time round. This time, there was no pretence that the courts could decide whether or not this new Bill will be convention-compliant. Previously, the Commons had been—as I accepted last time round—entirely inadvertently misled into thinking that the courts would have a say on it.

It is acknowledged on all sides that the Bill as it stands would overturn a quarter of a century of established English law as to the proper meaning of the convention. Of course, that is also the view of the UNHCR, which advises that we would be breaking international law by passing this legislation without such an amendment as now proposed. Therefore, it is now recognised that if the amendment fails to pass, the Bill will—the words can be used—foreclose or pre-empt the question as to the legality of these clauses. The clauses, in effect, would therefore operate as ouster clauses.

All the Minister in the other place said last week was:

“The Bill—I insist on this in the strongest terms—is compatible with all of our obligations under international law. Our position has not changed and we do not consider it necessary to put this on the face of this Bill.”—[Official Report, Commons, 20/4/22; col. 239.]


In other words, the Bill that we are now asked to approve without the amendment is simply proclaimed by the Government to be compliant. We are asked to accept the mere self-serving say-so—the assertion—that it is compliant, although, as I have said, it is unsupported, so far as I am aware, by any respected body of opinion charged to look into these things: the Joint Committee on Human Rights, the Bingham Centre, et cetera, and including, as I said, the UNHCR, which is charged specifically under the convention with the superintendence of the proper interpretation and application of the convention.

That is enough. I am sorry if this imperils our hopes of Prorogation this week, but I urge your Lordships to summon up the blood, stiffen the sinews—not, I think, Lord Balfour in that instance—and to continue to reject and challenge this further melancholy attempt to usurp our law.

[Lord Pannick (CB)]

My Lords, I too speak in favour of Motion B1, in the name of the noble Baroness, Lady Chakrabarti. I declare my interest as a practising barrister who sometimes acts in immigration cases.

As the noble and learned Lord has said, the overwhelming view of lawyers and interested, informed persons is that the provisions of the Bill breach this country’s obligations under the convention on refugees, which this country has signed. Ministers have repeatedly asserted to the contrary that they have failed to respond in any way to the reasoning of the critics.