Policing: European Championship Final

Lord Pannick Excerpts

Thursday 15th July 2021 Lords Chamber

[Baroness Williams of Trafford (Con) [V]]

I totally agree with my noble friend in praising the police for the exemplary job they do, and I will take his point back.

[Lord Pannick (CB) [V]]

My Lords, people who attended the match told me that the chaos, the threats and the violence caused by thousands of drunken and ticketless fans outside the stadium, many of whom forced their way inside, made this a frightening experience. That was especially because there were very few police officers to be seen. I do not understand how the Minister can say that the police did a good job on this occasion. It is surely all very well for the Minister to say that lessons need to be learned, but I suggest to her that the lesson that should be learned is that someone in the police service should take responsibility for all this and should resign.

[Baroness Williams of Trafford (Con) [V]]

My Lords, as regards the chaos outside, the noble Lord is absolutely right. In fact, I understand that many of the people who did not have tickets had no intention of watching the match; they came to cause trouble. On the numbers of police, I understand that almost 2,000 officers were deployed to Wembley on Sunday. To put that in context, it is the size of an average police force.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Pannick Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

Moved by

[Lord Pannick]

32: Schedule 1, page 7, line 26, leave out sub-paragraph (2)

[Lord Pannick (CB) [V]]

My Lords, last but I hope not least, Amendment 32 is in my name and in the names of the noble Lords, Lord Rosser and Lord Beith, and the noble Baroness, Lady Hamwee.

Amendment 32 addresses a very odd provision in paragraph 4(2) of Schedule 1. As currently worded, it states that provisions of the EU regulation on free movement for workers cease to apply if

“they are inconsistent with … the Immigration Acts”

or

“capable of affecting the interpretation, application or operation of any such provision.”

I suggested in Committee, with widespread support from all sides of the Committee, that the parliamentary draftsmen could and should do better than that. Paragraph 4(2) as currently drafted defies the need for legal certainty. The Bill should set out which provisions of the workers regulation will cease to apply.

The Minister promised to look at this matter, and she indicated that she would discuss it with me. Faithful to her word, as she always is, she has discussed the matter with me—for which I am very grateful—and has now tabled Amendment 32A, which satisfactorily addresses the point. I am very grateful to her. Amendment 33 addresses a similar problem, but sadly it has not received a favourable response from the Minister.

Paragraph 6(1) of Schedule 1 tells us that

“EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law”

in two circumstances—that is if

“they are inconsistent with, or … capable of affecting the interpretation, application or operation of,”

a provision of the Immigration Acts, or if

“they are otherwise capable of affecting the exercise of functions in connection with immigration.”

I simply do not understand how advisers on immigration law, far less those individuals who are the subject of immigration law, are supposed to work out what their legal rights and obligations are. Legal certainty requires, in my view, that the schedule should set out those EU-derived rights et cetera which are disapplied, or those which are retained. Your Lordships’ Constitution Committee, of which I am a member, criticised the legal uncertainty in our 11th report of this Session published on 2 September.

I think the only answer the Minister could possibly give to the concern I have identified about legal certainty is that Ministers and parliamentary draftsmen do not now know which provisions of EU law survive and which do not. That rather makes my point, I think. However, I do not intend to divide the House on this matter, troubling though it is. I beg to move.

[Lord Beith (LD)]

My Lords, my name is attached to the noble Lord’s Amendments 32 and 33 because they address two long-standing concerns of the Constitution Committee. The first is the broad and unjustified use of Henry VIII powers. The second is the confusing and counterproductive complexity of immigration law, which we believe needs to be clear and consolidated. That is why I support these amendments. I welcome the fact that the Government have addressed the first of these issues by tabling Amendment 32A, which makes more specific the scope of the power, confining it, as the noble Lord, Lord Pannick, has said, to Articles 2 to 10 of the workers regulations.

I would have welcomed a similar willingness to move on the issues that the Constitution Committee has raised in relation to paragraph 6 of Schedule 1, which nullifies EU-derived rights and remedies. The noble Lord, Lord Pannick, has quoted some parts of paragraph 6 and they are really extraordinary: rights should disappear because

“they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts”

and, even stranger, because they are

“otherwise capable of affecting the exercise of functions in connection with immigration.”

I can think of all sorts of functions that people might consider were “in connection” with immigration, but we really need laws that are clearer than that.

Adrian Berry, chair of the Immigration Law Practitioners’ Association, said when he gave evidence to us:

“How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that?”


I know that parliamentary draftsmen have had a pretty heavy diet of work lately, not least with Covid-19 orders, but it is possible to do better than that, unless the instructions given to them were so unspecific as to leave things so wide open that they had to draft the legislation in that extraordinary way.

Paragraph 69 of the Explanatory Notes tries to explain why this is necessary, but fails to do so—at least I find it completely unpersuasive. I did learn a little more about Chen carers than I knew previously, which was almost nothing. I am sure that my noble friend Lady Hamwee thinks of little else at some stages of the Bill than the quite obscure provision that resulted from the Chen case before the European Court of Justice. However, I certainly found the argument unpersuasive.

The committee says:

“The statute book requires clarity rather than obscurity and provisions such as these threaten to frustrate essential ingredients of the rule of law.”


An essential ingredient of the rule of law is that it is on record and visible and capable of being understood, particularly by those who practice it professionally, but preferably by a wider range of people as well, including those who may face either a penalty or, in this case, the inability to have a right to which they believe they are entitled as a consequence of wording as vague as this.

There is still time to improve this: the Minister could come back at Third Reading with an amendment that makes clear the purpose of this paragraph, and I am only sorry that she has not done so thus far.

--- Later in debate ---

I understand the intent of the noble Lord, Lord Pannick, and the objective that lies behind his amendments, but I hope that Amendment 32A has gone some way to clarifying the effect of paragraph 4. I urge the noble Lord to withdraw his amendment.

[Lord Pannick (CB) [V]]

I thank the Minister, certainly for government Amendment 32A, which deals with the concern that we have expressed in Amendment 32. However, the Minister’s attempt to defend paragraph 6(1) of the schedule is, I am afraid, wholly unconvincing. Her observations do not provide me with any useful clarification as to how the paragraph is going to apply. As the Minister has said, there are too many provisions and the position is too uncertain, and therefore the legislation cannot list the provisions. What she is suggesting, as I said in my opening remarks, is that the position is too uncertain for clarification, but the inevitable consequence is that the position is too uncertain for those who are advising immigrants and for immigrants themselves. They cannot possibly know with certainty how this provision will apply. I should respectfully warn the Minister that, if and when paragraph 6(1) is the subject of litigation in individual cases, the Government may well find that the courts will adopt a very unsympathetic approach to it and will give it the narrowest possible interpretation because it is so lacking in certainty. That is the real risk that the Government are running.

I have never seen a provision like paragraph 6(1) before in legislation—that is, a provision that depends on whether something is capable of affecting the exercise of functions—and I hope never to see such a provision in legislation again. I shall regard it as one of the increasing number of undesirable consequences of the decision to leave the EU and as setting no precedent for any other legislative content. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Pannick Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I moved Amendments 4 and 5 in Committee; they are amendments to what the Public Law Project called the “breathtakingly wide” powers proposed to be given to the Secretary of State. It is ironic that when elsewhere negotiations are going on—or maybe not going on—regarding the sovereignty of the UK Parliament, we are being faced with exercising our sovereignty in order to pass it back to the Executive.

Amendment 4 would substitute in Clause 4, which is about regulation-making powers, the word “necessary” for “appropriate”. Amendment 5 would take out the ability for the Secretary of State to make regulations “in connection with” anything in Part 1. Taken together, these terms give the Executive huge latitude. I am glad that the names of the noble Lords, Lord Rosser, Lord Pannick and Lord Alton, have been added to my amendments. The clause would read, “such provision as the Secretary of State considers necessary in consequence of any provision” of Part 1.

The amendments follow the report of the Delegated Powers and Regulatory Reform Committee, a member of which, the noble Baroness, Lady Meacher, made a very balanced speech at the last stage of the Bill. She acknowledged, as I do, that consequential amendments through means of secondary legislation are generally needed—although, as she said, when they can be they are to be put in the Bill, with regulations then used for tidying up. But as the breadth and number of amendments in Committee showed—that is, amendments to the Bill —a huge number of topics can fairly be said to be connected with Part 1. Those topics were all approved by the clerks to the House as being within scope of the Bill.

The noble Lord, Lord Blencathra, chair of the DPRR Committee, said that he spoke in sorrow, rather than being vicious, about its reported criticisms or concerns about the clause. I think we are entitled to expect more of the Government—and this is not vicious, but many degrees up from sorrowful—than the defence that:

“There are clear constraints on the use of the power in Clause 4. It can be used only to make regulations that amend primary or secondary legislation ‘in consequence of, or in connection with’ Part 1”.


That is exactly what we object to. I had forgotten to comment on the offensive—and I say that deliberately—power to amend primary legislation through regulations. The Government’s reply to the committee’s report included the Minister again asking your Lordships to consider the illustrative draft of the regulations which, shortly before the last stage, had been circulated, and to

“take comfort that this power is specifically to deliver the end of free movement”.—[Official Report, 7/9/20; col. 641.]

That is also relied on in the long letter from the Home Office, which I received at lunchtime today—and I dare say that the timing was similar for other noble Lords. I have to confess that I have not been able to get my head around quite all of it.

The draft regulations referred to are, frankly, fiendishly complicated, and are causing a lot of anxiety both as to the extent they are understood—especially as to any omissions—and to the extent they are not understood. But whatever they are like, we have nothing that we can look to as an assurance that there will not be more regulations. The “lawyers”, I am told, are engaged in an exhaustive process of analysing this draft. It may bore others as much as it does me to say it, but whatever the intentions of this Government and this Minister today, that would not matter one jot tomorrow in terms of curbing the power in Clause 4. I beg to move.

[Lord Pannick (CB) [V]]

My Lords, I agree, as I usually do, with the noble Baroness, Lady Hamwee. She mentioned the report of the Delegated Powers and Regulatory Reform Committee. There was also a report on this subject by your Lordships’ Constitution Committee, of which I am a member. We issued a report on 2 September, our 11th report of the session. At paragraph 22, we said:

“We agree with the conclusions of the Delegated Powers and Regulatory Reform Committee about the powers in clause 4. A Henry VIII clause that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable. Such vague and subjective language undermine fundamental elements of the rule of law.”


That is the view of your Lordships’ Constitution Committee, in a unanimous report from Members from around the House. I am very disappointed that the Government have been so far unwilling to engage with that advice—and certainly to accept it.

The Delegated Powers and Regulatory Reform Committee noted, in paragraphs 18 to 19 of its excellent report, the exceptional breadth of Clause 4(1). What it does is empower the Secretary of State not merely to make regulations “in consequence of” this legislation but “in connection with” this legislation. As the committee explained, that would confer on Ministers the power to make whatever regulations they think appropriate, provided they have some connection with the legislation, “however tenuous”. Given the exceptional breadth of the delegated powers in Clause 4, I also support Amendment 9 in the name of the noble Lord, Lord Rosser, which would impose a sunset clause on these powers.

I have one further point. This Bill is far from unique in seeking to confer excessively broad powers on Ministers. The Constitution Committee has repeatedly drawn attention to the need for effective limits on delegated legislation, to ensure ministerial accountability to Parliament. I am pleased that Members of the House of Commons, in the last few days, have begun to recognise the dangers of such legislation, not least because, when regulations are brought forward, they are unamendable. Your Lordships’ Constitution Committee has regularly made this point in reports over the last few years. The unacceptable breadth of provisions such as Clause 4 in the Bill is, I regret to say, typical of a Government who, too often, see Parliament as an inconvenience rather than the constitutional authority to which the Government are accountable.

[Lord Alton of Liverpool (CB)]

My Lords, first of all, I would like to apologise to the noble Baroness, Lady Hamwee, for missing, in these rather disrupted circumstances, the very beginning of her speech today. But I am very pleased to be able to support her amendment and the others that are grouped with it.

In Committee, we had a discussion about some of the powers contained in this Bill, and I am pleased to be a signatory to Amendment 4. But I would also like to support Amendment 5 and, for the reasons my noble friend Lord Pannick has just advanced, Amendment 9 in the name of the noble Lord, Lord Rosser, which is about a sunset clause. Amendment 5 seeks to narrow the powers of the Secretary of State, and in a way that is at the heart also of Amendment 4, which is what I want to address this afternoon.

All these amendments seek to rein in some of the powers which Ministers are taking. It is a particular pleasure to be able to follow the noble Baroness, Lady Hamwee, and my noble friend Lord Pannick. He referred to the Constitution Committee and its work, and I entirely agree that the substitution of the word “necessary” for “appropriate” places a higher threshold into the Bill—but you might wonder why on earth we would be spending so much time on just two words. Why does that really matter?

Yesterday in Grand Committee, in the context of the Trade Bill, I questioned, yet again, the Government’s overuse of secondary legislation and their unconvincing assertion that this amounts to effective parliamentary scrutiny and accountability. I recall that the last time the House of Commons failed to pass an affirmative action Motion was in 1978, the year before I was elected to the House of Commons. The chairman of the 1922 Committee, Sir Graham Brady, has rightly warned of the dangers of the Government taking a whole range of powers that effectively neuter due parliamentary process, and I agree with him.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Pannick Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

[Lord Pannick (CB) [V]]

My Lords, that was indeed a passionate speech.

When I was a first-year law student at Hertford College, Oxford, we learned that apparently the Roman Emperor Caligula ordered that laws should be displayed in small letters as high up as possible to make it difficult for people to know their legal rights and obligations. Amendment 3 focuses attention on an extraordinary provision in this Bill—paragraph 4(2) of Schedule 1—which, if enacted, will make it impossible for people today to understand their legal rights and obligations.

Paragraph 4 is concerned with the EU regulation on free movement of workers. Paragraph 4(1) is a model of clarity; it says that Article 1 of the regulation “is omitted”. However, paragraph 4(2) displays the parliamentary draftsman at his or her most coy. It is so extraordinary that it must be read out:

“The other provisions of the Workers Regulation cease to apply so far as—


(a) they are inconsistent with any provision made by or under the Immigration Acts (including, and as amended by, this Act), or


(b) they are otherwise capable of affecting the interpretation, application or operation of any such provision.”


It is simply not acceptable that when people want to know whether a provision of an EU regulation continues to apply, they must ask themselves whether the provision is

“capable of affecting the interpretation, application or operation"

of a provision of the immigration Acts. This is drafting so opaque that it puts a brick wall between the individual and the law which applies to him or her. It is drafting so lazy that it is comatose. The same woeful drafting technique also appears in paragraph 6(1) of Schedule 1, a provision addressed in Amendments 4 and 5 in this group tabled by the noble Baroness, Lady Hamwee, which I support. If the Government want to ensure that provisions of a regulation cease to apply, they should say so with clarity.

Amendment 3 is in my name, and in the names of two other members of your Lordships’ Constitution Committee, the noble Baroness, Lady Taylor of Bolton, our chair, and the noble Lord, Lord Beith. The Constitution Committee’s report, published last week, drew attention to paragraph 4(2) of Schedule 1 as unacceptably vague and inevitably productive of legal uncertainty. We quoted the evidence given to the Commons Public Bill Committee by Adrian Berry, the barrister chair of the Immigration Law Practitioners’ Association. He said of this provision:

“You need to make better laws. Make it certain and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 9/6/20; col. 52.]


I agree. Basic standards of legislative drafting need to be upheld. Paragraph 4(2) of Schedule 1 is way below what is acceptable. I can think of no precedent for such a provision.

I hope that the Minister says that she understands the objection to this provision and that she will bring forward a suitable amendment on Report. I give due warning that if the Government do not address this concern, and if other noble Lords share my concern, I will return to this topic on Report.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, we did vote to leave the EU, and I do not think anyone can be in any doubt about some of the reasons. People voted for a variety of reasons, but the noble Baroness will totally understand that I am not going to get into a debate about why people did or did not want to leave the EU. I will leave it there.

[Lord Pannick (CB) [V]]

My Lords, I am grateful to the Minister for her careful response to Amendment 3. It was very thoughtful—not a response off the top of her head. I am also grateful for the offer of a meeting, which I will happily take up.

The Minister gave an example of a provision in the regulations that she said was inconsistent with the immigration Acts. I accept that there may well be many such provisions. My point is very simple: spell them out in Schedule 1. Do not use this vague language of drafting which means that people cannot identify what their rights and obligations are. My amendment is not designed to keep or remove any particular right; it is simply designed to require the Government to instruct the parliamentary draftsman to produce a provision that implies basic standards of legal certainty. I hope the Minister has noted the substantial concern around the House at this lack of certainty in the drafting of Schedule 1. It is simply not good enough and it needs to be addressed. I look forward to discussing this with the Minister prior to Report.

[Baroness Williams of Trafford (Con)]

I totally understand the point that the noble Lord makes about certainty. In addressing this, I should like to meet him, because I totally get what he is saying. He is not being difficult; he is just asking that we lay out the law and provide certainty.

Policing and Crime Bill

Lord Pannick Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Lord Strasburger (LD)]

My Lords, I will speak briefly to the amendment in the name of the noble Baroness, Lady O’Neill. On two occasions, this House has previously considered the subject of whether Leveson 2 should proceed and, on both, came down firmly in favour of it going ahead. Whether or not the noble Baroness decides to test the opinion of the House today, it is important that the Government be reminded that your Lordships’ House is not going to let the matter drop.

Some very pertinent questions remain unanswered. I draw the House’s attention to just one of the terms of reference for Leveson 2 and the important issues that remain unresolved. The sixth term of reference is:

“To inquire into the extent of corporate governance and management failures at News International and other newspaper organisations, and the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International”.


It is essential that, in such a vital industry as the press, the extent and nature of corporate governance and management failures be established. This is underscored by the fact that many of the leading executives are still in post, have returned to their post or retain key roles in the industry. These include the chief executive of News UK, the editor-in-chief of Associated Newspapers and the director of legal affairs at the Telegraph, who had the equivalent post at Trinity Mirror during the phone hacking scandal and its cover-up.

The questions that need addressing are as follows. First, how did it come to be that phone hacking and the unlawful blagging of personal data persisted on such an industrial scale at certain titles for so long; in the case of News UK and Trinity Mirror for at least 10 years, and for several years after journalists at both companies were first questioned by the police under Operation Glade in early 2004? Secondly, how and why was phone hacking and the unlawful blagging of personal data covered up at some of the largest newspapers, in the face of emerging evidence that executives knew about the practice and some findings and admissions in the civil courts to that effect? Thirdly, is it appropriate that no executive has lost their job over the corporate governance and management failures that took place? Has there been a cover-up of the cover-up of wrongdoing?

I will not delay the House further as I suspect noble Lords would like to move on to other matters. Suffice it so say that there are several other topics that Leveson 2 is scheduled to examine and they are of equal importance to the one I have highlighted. Leveson 2 is needed to inquire into suspicious matters affecting our police, our newspapers and our politicians. Since the completion of part 1 of Lord Leveson’s inquiry, the case for part 2 has become even stronger.

[Lord Pannick (CB)]

My Lords, I declare an interest as a regular adviser to the press on regulatory matters. It has not yet been mentioned today, but your Lordships may wish to take into account that, since Leveson was instituted, there have been large numbers of criminal trials and civil proceedings in which the conduct of the press and the police has been on trial. I am far from convinced that the time, expense and use of judicial resources that will be required by Leveson part 2 are therefore justified. However, your Lordships do not need to decide that issue today—it is the very matter under consultation by the Secretary of State. If the Secretary of State’s answer is unsatisfactory to noble Lords, this House and the other place are perfectly entitled to, and no doubt will, reconsider the matter.

The noble Lord, Lord Rosser, mentioned the unsatisfactory element of the amendment of the noble Baroness, Lady O’Neill: that it appears to give Lord Justice Leveson a veto over the views of Parliament. I hope that when considering the consultation issues, the Secretary of State will privately talk to Sir Brian Leveson and take his view as to whether he thinks, with all of his enormous experience, that Leveson 2 would be justified. I cannot support the Motion of the noble Baroness, Lady O’Neill.

Policing and Crime Bill

Lord Pannick Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Lamont of Lerwick (Con)]

My Lords, I shall speak to Amendment 187. I do so with very great hesitation. I apologise to the noble Lord, Lord Pannick, for speaking before him. I feel great reticence, speaking on this as a non-lawyer. That may be key: I have got in early to speak before I can be corrected by all the lawyers. I have not entirely made up my mind. I am speaking to the amendment; I will listen very carefully to what the Minister says.

The reason I am speaking in the debate at all is because I feel I owe it to the memory of my friend Lord Brittan. He was also the friend of my noble friends Lord Howard and Lord Deben. I saw a lot of Lord Brittan in the final weeks of his life. I saw the tremendous suffering caused to him by being wrongly accused of a rape offence. The Henriques report concluded that the proceedings against Lord Brittan should have been ended much earlier. It catalogued a whole series of mistakes, in this case and in others. There was a total of some 43 errors.

It is the case of Lord Brittan that prompted me to intervene, but the last thing that I would argue, or that he would have wanted argued, is that this is about important people or public people. This is about everybody who might find themselves in this sort of situation.

I acknowledge, too, the argument that the noble Lord, Lord Paddick, to some extent refuted about why there should be an exception only for cases of a sexual nature. Personally, I would toy with the idea of going much wider than just offences of a sexual nature, as I believe Commissioner Hogan-Howe would also argue.

I have seen the letter sent by the End Violence Against Women coalition to Cliff Richard and Paul Gambaccini. It talks about the amendment proposing defendant anonymity. It is not. A defendant is a person who has been charged. Up to that point they are accused. The noble Lord, Lord Paddick, referred to the ambiguity of the word “accused”. I was glad he did, because I wondered whether I was the only person who felt this as a lay man. It is not very clear to me but, as I understand it, “accused” might include interviewed under caution or arrested under bail. Is it really right that a person’s name should be released to the public and the press simply because they have been interviewed under caution when no further action is taken?

I remember particularly vividly a case which, while not a sexual case, made a big impact on me. It was the case of the teacher, Mr Jefferies, who lived in Bristol in a flat next to a poor girl who had been murdered. I do not know whether it was the police who released it or how his name came to be in the public domain, but I cannot imagine the suffering. I think Members of this House have had letters from Mr Jefferies about what he suffered and the damage to his reputation. People just assume that the damage to someone’s reputation will go away because charges do not follow but that is not reality. That is not what happens; there is always an element of the public who think, “No smoke without fire”, and there is permanent damage to an individual’s reputation, which can be absolutely life shattering.

Naming people before charging undermines the presumption of innocence at the heart of our system of justice. Usually, when people’s names are released it is seriously damaging to their reputation, even if they were not charged but just held for a period or their home was searched. The public are not always very rigorous in observing, in their own discussions or in what is written, the principle that one is innocent until proven guilty.

I also wonder, as a non-lawyer, about the effect on the trial itself. It is one thing to talk about the effect on the individual, but what about the effect on the trial of releasing someone’s name before it? How quickly will a jury be able to forget the evidence that has been put forward?

The argument that is made for pre-charge publicity is that it will bring forward further possible victims and allegations that can be followed up. Therefore, crimes can be pursued, but does that really have to be pre-charge? Such further evidence can also come forward after a person has been charged. We know that such situations can lead to false claims being made. I am not suggesting for one minute that false allegations of rape are common—they are not; I know that—but some of the evidence we have seen of historical sexual abuse has indicated that there have been cases where some people have come forward with allegation that are completely false. They may have seen the names of people on television and somehow convinced themselves. Sometimes it is people who are not very well who make these allegations.

It seems to me that the rights of the innocent are extremely important. I hope that, whatever arguments the Minister puts forward, she will not use the phrase “It is a question of finding the right balance” too much. The rights of the innocent are extremely important. The noble Lord, Lord Paddick, quoted the old maxim, which I was going to quote myself, “Better that 10 guilty men go free than that one innocent person be convicted”. I have the greatest possible sympathy with the amendment of the noble Lord, Lord Paddick. I will listen to the Minister and then make up my mind, but regardless of whether I vote or do not vote for the amendment, I absolutely want to be convinced that something will be done about this situation. Nothing has been done about it and I cannot imagine that we will be happy if the amendment is rejected and nothing further is done. I remain convinced that there has been a lot of suffering and a lot of injustice done in the present situation.

[Lord Pannick (CB)]

My Lords, this is a very difficult issue. The speeches that your Lordships have heard from the noble Lords, Lord Marlesford, Lord Paddick and Lord Lamont, make a very powerful case. I cannot agree with it and I shall briefly attempt to explain why. The starting point is that we must all, of course, have enormous sympathy for Sir Cliff Richard, Paul Gambaccini, Lord Bramall, Harvey Proctor, the late Lord Brittan—and, of course, Lady Brittan—and the many others who have been wrongly accused of sex offences. They have been subjected to what is, on any view, an outrageously unfair procedure. I agree with the noble Lord, Lord Lamont, that they have been caused irreparable harm by a combination of the absence of any credible evidence for the allegations, the length of time it has taken the police to investigate these matters and the contempt of the police and the public for the presumption of innocence, to which the noble Lord, Lord Lamont, averted. In a famous 1935 case, Lord Sankey, the Lord Chancellor, called the presumption of innocence the “golden thread” that runs through our criminal law. It is very regrettable that so many of us, and our newspapers, proceed on the opposite principle that there is no smoke without fire, even when the smoke is no more than the hot air blown out by deluded fantasists. On that, I entirely agree. There is simply no dispute about that.

The question is whether either of these amendments is a sensible way forward, and in my view they are not for three reasons. First, in the context of alleged sex offences, publicity can lead, and has led, to witnesses coming forward with supporting evidence that helps to convict a person who is rightly accused and—this is the way the world works—it may be that only on hearing that an allegation against a named person is being taken seriously by the authorities do potential witnesses who say that they suffered the same problems and attacks in the past have the confidence to come forward. The noble Lord, Lord Lamont, pointed out that these people can come forward after a charge is brought, but the problem is that if supporting witnesses do not come forward at an earlier stage, a charge may never be brought. The prosecution authorities may not proceed. Of course, as the noble Lord, Lord Paddick, rightly said, some of those who come forward will not be telling the truth. That is undoubtedly correct, but the legal process addresses that issue in a trial. It is not sufficient that these amendments would allow a judge to give permission to publicise the identity of the person who has been accused. I do not see how a judge will be able, in any particular case, to assess the likelihood of unknown witnesses coming forward.

The second reason why I am troubled by these amendments is that there is, sadly, still great reluctance by victims to report allegations of rape and sexual offences. There is no ban on publicising the names of persons suspected of other serious offences, such as murder or terrorism, and—the noble Lord, Lord Rosser, made this point in Committee—there is real concern that to give a special privilege to those accused of sexual offences could exacerbate the concern of many alleged victims that the law does not take sexual offences as seriously as it should, so making it even less likely that they will report the allegations. I do not think it is an answer for the noble Lord, Lord Paddick, to point out that the law grants anonymity to the alleged victim in sexual offences cases. The alleged victim is granted anonymity because of concern that publicity would deter complainants from bringing forward their allegations, which is an entirely distinct argument.

The third reason is the one given in Committee by the noble and learned Lord, Lord Judge, who I am pleased to see in his place. It is that under these amendments it would be unlawful to tell the public that a person suspected of a serious crime has been arrested and so has lost their liberty, albeit for a short period. I think the noble Lord, Lord Paddick, misunderstood this point, which was not that a person could be held incommunicado.

Prohibiting publication of who is accused and of what in this context would be wrong in principle. It would deflect attention away from the true mischief, which is the lack of respect for the presumption of innocence. Indeed, as the noble Baroness, Lady Williams of Trafford, said from the Front Bench in opposing a similar amendment in Committee, at col. 1466, to enact an amendment of this sort conferring anonymity would serve only to undermine the presumption of innocence of those who are accused of sexual offences.

--- Later in debate ---

[Lord Deben (Con)]

My Lords, as a non-lawyer, I hesitate to disagree with the noble Lord, Lord Pannick, but it seemed to me that he undermined his case right at the beginning when he said that there were allegations that were ridiculous and had no basis at all, yet the police announced these allegations to the world. I happen to know about this because, as I was seen at the funeral of my late friend and colleague, Leon Brittan, I was for some time followed by certain people claiming that they had evidence of his wickedness. They were silly enough to state that evidence, which was total nonsense. It was without any foundation. It could not have been true.

However, I do not want to talk about my friend. I want to talk about somebody whom I do not know at all, although I have met him: Lord Bramall. The allegation against Lord Bramall could have been proved to have been entirely wrong merely by looking at the date on which it was claimed, because at that point he was in a public place, at which it could not have been as alleged. The issue is not that we wish to restrict the opportunities of giving to others the chance to come forward. It is simply, narrowly, to say that somebody other than the police has to be involved before such an announcement is made in public.

There are too many examples of the police giving information to others in all sorts of circumstances. A relation of mine was in precisely such circumstances. What the police told the press was entirely proper and complimentary, but she did not want that to be given out. But the police did—they were clearly paid for it—and it resulted in a long and extremely congratulatory article. The issue was that the police decided that they would make that decision, when there was no reason for it. That was a happy example, but there are some terrible examples. I say to the noble Lord, Lord Pannick, that we cannot live in a society in which there is no guard against those who give out such information before a charge has been laid.

All we are saying—the two amendments have different ways of doing this and it may be that neither is satisfactory—is that it should not be up to an individual policeman or an individual police force to make this kind of allegation before there is any charge. It should go to someone else. If I may say so to the noble Lord, Lord Pannick, this someone else may not be able to judge whether allowing this will bring forward more witnesses, but what he or she is able to judge is whether it is a load of old rubbish. At least he or she can assess whether what is proposed as the basis for investigation has some foundation. That is why it is perfectly proper to say that a judge or a magistrate might take this role.

I therefore beg my friend—I can call him that because the noble Lord and I are usually on the same side—to recognise that it is too dangerous an insult to the British legal system for people to be seen as guilty when they are innocent on the say-so of an individual policeman. All I am asking is that it should be on the say-so, in the quietness and care of a proper circumstance, of someone whose future does not depend on the publicity, who can look at the evidence and say, “Really, officer, I don’t think there looks like being anything in that because of x, y and z. Perhaps you might find out more about it before you move in this way”. That is what we ask.

[Lord Pannick]

Before the noble Lord sits down, does he think it is in the interests of the potential defendant for a judge to determine that there really is something in the allegations, and therefore to authorise that publicity is appropriate? Is that not seriously damaging to the presumption of innocence?

[Lord Deben]

Not at all. The fact is that what the judge would be deciding is whether that name should be put forward at that point, and in most cases he would probably say no. I can think of very few cases when publishing the name in connection with an allegation would reduce the number of people coming forward if that name were later published at the point of an actual charge. It would therefore affect a limited number; in fact I do not believe there are any in this group. But if there were, I would want someone to be able to say, “In this particular case, it is so important that I will allow it to be done”.

Policing and Crime Bill

Lord Pannick Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have some comments on Amendments 216 and 217 for consideration by the Committee. On Amendment 216, I am doubtful that Section 35 of the Criminal Justice and Courts Act 2015 needs amendment to add the words “breasts” and “buttocks”. The reason for that is that Section 35(3) already defines a photograph or a film as sexual if,

“it shows something that a reasonable person would consider to be sexual because of its nature”,

or if the,

“content, taken as a whole, is such that a reasonable person would consider it to be sexual”.

The reason why I anticipate that the 2015 Act does not make a photograph of a breast or a buttock necessarily sexual is that it is very easy to think of circumstances in which such a photograph is not sexual by reason of its context. It may be a photograph of your child in a swimming pool with their breast exposed; it may be a photograph of a breast-feeding mother. It may be a beach shot of my family that shows someone in the background wearing a thong. It all depends on the context—and if the context is sexual, the Act already covers it.

Subsection (4) of the proposed new clause in Amendment 217 would create a new criminal offence of promoting, soliciting or profiting from “private photographs and films”. I have no difficulty, of course, with the idea that that should be a criminal offence. I point out that that subsection, however, does not use the word “sexual”. I assume that that is a drafting error; it talks about profiting from “private photographs and films”, but I think it should say “private sexual photographs and films”. Otherwise, it has a very different scope—which I see from the nodding on the Liberal Democrat Benches was not intended.

[Lord Marks of Henley-on-Thames]

The noble Lord, Lord Pannick, is plainly right on that—it needs amendment.

[Lord Pannick]

I am grateful. My only other point on Amendment 217 is one that I think the noble Lord, Lord Marks, accepted in his helpful opening speech. The offence in subsection (4) is committed if the defendant reasonably believes that the photographs or films were “disclosed without consent”. That would be anomalous since the primary offence—the offence committed by the person who discloses private sexual photographs or films—rightly requires the prosecution to prove that the disclosure was without the consent of the individual.

[Baroness Grender (LD)]

My Lords, I support the amendments in this group. I am delighted to see the noble Lord, Lord Faulks, in his place, as the Minister who announced the changes in the legislation when some of us were campaigning to get it transformed. It was a very proud moment when he announced it—quite late in the evening, as I recall—and we had watching in the Gallery a whole row of ladies, plus one man, who had broken their anonymity and shared with us the appalling experiences that each of them had been through as a result of revenge porn.

I am very proud that, even with the limited amendments that we managed to get through to the Criminal Justice and Courts Act 2015, we are now as a nation a little further ahead than most others in trying to deal with a very difficult issue. But there are so many more who are not caught in the current legislation. While in 2015-16 we know that 206 individuals were prosecuted under the new law, a survey by “Good Morning Britain” revealed that police forces in England and Wales had dealt with a total of 2,130 cases. There is quite a difference between these numbers in terms of what is going forward to prosecution, and we have already heard what some of the difficulties in that area are likely to be.

It is also critical that we as parliamentarians stay ahead of the speed of change in attitudes and behaviour that smartphones and social media bring in their wake. In the US, a McAfee study revealed that 36% of people had sent or intended to send an intimate picture. As legislators, we have to understand that, whatever our attitude to and opinion of that, we need to create laws that foresee the way that society is changing. These amendments therefore necessarily go further and we must credit the Women’s Equality Party for its part in doing some of the drafting, which resulted in us trying to amend this in the other place.

I particularly want to address the issue of anonymity. When we ran this campaign a year ago, some women stepped forward and were prepared to be named when they recounted what they had gone through. But part of the problem was that many victims were too scared to put their names out there. This happened to one lady whom we dealt with—because her name was out there and she was campaigning against this, it ensured that she got far more coverage on some of the websites that she was deliberately trying to avoid. It has now been accepted in current legislation by this Government that victims of forced marriage are given that anonymity; I see this as being a very similar area.

I will conclude here. I think that we are aware that in this area there are issues of suicide, self-harm and damaged reputation. As we talk now there are hundreds, perhaps thousands, of young men and women who are sharing intimate images that, frankly, will have a devastating impact on their future. It is up to us, through some of these amendments, to be ahead of the law at every stage.

--- Later in debate ---

[Earl Attlee (Con)]

My Lords, I strongly support the noble Lord, Lord Paddick, and his very reasonable amendment. The Committee is very lucky to have his expertise. Unfortunately, I have limited experience in the area of PACE and police investigations, so I am unable to offer the Committee my own solution. However, I have no difficulty in seeing that something is seriously wrong and needs urgent attention, and I intend to support the noble Lord vigorously.

Throughout the passage of the Bill, the Minister has never hesitated to rely on the principle of operational independence for the police, but it is a principle that I think is often taken too far and seems to me to be an excuse for doing nothing. Interestingly, when the then Home Secretary, my right honourable friend the Prime Minister, wanted to curb the use of stop and search powers, operational independence did not seem to be a problem.

In public life, some people are important, some are powerful, some are senior and some are all three. Fortunately, I am none of these, so there is no risk to me of being subject to a sensational and false allegation, because no one would be the slightest bit interested.

It is not often that the Metropolitan Police has to investigate someone who is far more senior than the commissioner himself. When such a situation arises, no one—as far as I am aware—is suggesting that an investigation should not take place; far from it. In fact, in recent years we have seen Cabinet Ministers investigated and prosecuted. As far as I know, during Operation Midland Ministers and the Government did absolutely nothing and let the police follow the evidence, and rightly so. We would not expect anything else, and we do not want to repeat the mistakes of the past.

Nevertheless, if the Metropolitan Police decides to investigate someone as senior as the noble and gallant Lord, Field Marshall Lord Bramall, KG—Knight of the Garter—one would expect the commissioner to keep himself very closely informed indeed, not least because it could have adverse effect with our overseas opponents. It also could cause very serious reputational damage to the Metropolitan Police if the operation turned out to be flawed.

The Committee will be aware that Lord Bramall was Chief of the Defence Staff at the height of the Cold War. Our Security Service, over many years, would have formally and informally taken all the necessary steps to ensure that he could be trusted with large amounts of highly classified material. Our “Four Eyes” partners would also have relied on that confidence, but the exceptionally overt Operation Midland investigation could well have called into question the reliability of our vetting procedures.

Lord Bramall would have known everything when he was Chief of the Defence Staff. For instance, in the event of a mass armoured attack on the north German plain, would we have used tactical nuclear weapons? He would have known. What serious weaknesses did we have that our opponents were unaware of? He would have known. What weaknesses did our opponents have that we knew about but they did not? He would have known. If there was any problem with Lord Bramall along the lines alleged, it would have been of strategic significance. It would have been unbelievably serious.

At Question Time last week, the Minister referred to the Henriques report. The report was initiated and the terms of reference were set by the commissioner. Apparently, this means he can also determine what is published and what is not. Therefore, my first question to the Minister is: does the report and its terms of reference cover the failure of the commissioner to terminate the Operation Midland inquiry into Lord Bramall as soon as possible after it became obvious that there was not one shred of incriminating evidence? Secondly, has my noble friend read the report? Will the Home Secretary initiate an inquiry on her own terms, so that she can determine what will be published?

I am extremely unhappy about the procedure for obtaining search warrants, although my advice is that the magistrate concerned probably did the right thing by granting one in the Bramall case. What is the point of involving the judiciary if magistrates grant a warrant in such circumstances as Lord Bramall’s case? What questions were asked of the police requesting the warrant in such an improbable case? For instance, were they asked whether the Security Service had been consulted and whether the sanity of Nick had been checked by a medically qualified person? If the complaint turned out to be fiction and baseless, would a criminal prosecution of Nick be inevitable because that should be the remedy for a malicious and baseless complaint? It would also be interesting to know whether the commissioner asked these questions. It now seems that it may be better to allow a senior police officer to authorise a search rather than relying upon the judiciary. At least there is some mechanism for holding senior officers to account, eventually.

If this totally flawed inquiry can be inflicted upon a retired officer of stratospheric seniority with apparent impunity, what is to protect the ordinary man in the street? It seems to me that the judiciary dish out search warrants like sweets, despite how distressing it must be for an innocent person, whatever their status. So far as I can see, the Commissioner of the Metropolitan Police had the power to terminate this inquiry at an early stage, but chose not to do so for presentational reasons. He could have written a sincere letter of apology to Lord Bramall, but chose not to, presumably on legal advice. Luckily, Lord Bramall has not passed away too soon; it is a pity the same cannot be said for Lord Brittan or, indeed, Lady Bramall.

Both these failings seem to me to indicate a lack of capacity to take an unpalatable course of action. It is not unusual for retired Commissioners of the Metropolitan Police to be offered a seat in your Lordships’ House, but your Lordships’ House is overfull with active Members. We already have far too many Peers, and we already have several retired senior and very senior police officers who are already meeting the needs of the House exceptionally well, not least the noble Lord, Lord Paddick. It is not clear to me why we would need another retired commissioner, and one who appears to be unable to write a sincere letter of apology to a Field Marshal who has had his reputation traduced solely because he is such a senior officer and a great public servant. If the police use their powers carelessly, it is our duty to constrain them.

[Lord Pannick]

My Lords, the Committee will be very grateful to the noble Lords, Lord Paddick and Lord Campbell-Savours, for bringing forward this amendment on what is undoubtedly an important issue. I am sure the Committee shares their sense of outrage—I certainly do—at the treatment of Sir Cliff Richard and others who were wrongly and unfairly accused of sexual offences, but I am not persuaded that this amendment is the answer to the problem. A prohibition on publicising an accusation of a sexual offence raises many difficulties.

The first is that publicity can lead others to come forward with supporting evidence that helps to make the case against the person who is rightly accused. Sometimes this is evidence that the person accused has treated them in the same way. They have not previously come forward because they are fearful that no one would take them seriously. It is only hearing that an allegation is being taken seriously that gives them the confidence to come forward.

[Lord Campbell-Savours]

Surely they can come forward during the course of the trial.

[Lord Pannick]

The problem is that they come forward during the course of the trial only if there is one. By reason of the publicity, they are encouraged to come forward and present evidence that helps to persuade the prosecuting authorities that the matter should proceed to a trial. That is the difficulty. The noble Lord, Lord Paddick, says that justice should not be achieved at any cost. He is right, but to impede convicting the guilty is a very high cost indeed. That is the first problem.

The second problem is that the amendment would prevent the person accused from publicising the allegation against him in order to express his outrage or possibly to seek alibi witnesses. There are cases in which publicity has been sought by the person wrongly accused and this helps to exonerate that person. I appreciate that this amendment would allow the person accused to seek permission from the judge to publicise the matter in the public interest. But if I am wrongly accused of a sexual offence, I should not need to persuade a judge that it is in the public interest for me to be able to publicise the fact. I am entitled to publicise the matter because it is in my interests.

The third problem is common to restrictions on open justice. You can prevent publication of the name of the person concerned, but you cannot prevent people in the know from gossiping. The consequence is that a larger group of people know the name of the person concerned. Those who do not know inevitably speculate. This amendment or any variation of it would not prevent the press from publicising—and they would—that a famous footballer, a well-known pop star or a senior politician has been accused of a sexual offence. It would not prevent the press from publicising details as long as this does not identify the specific politician, pop star or footballer concerned.

[Earl Attlee]

I am sure that the noble Lord is right. Would that not let other victims know that their allegations would be taken seriously?

[Lord Pannick]

No. They would not know who the individual was. This of course is very unfair on famous footballers, well-known pop stars and senior politicians who are not the subject of the accusation. Can they issue a press release to say that they are not the person concerned? That is the third problem.

The fourth problem is that the amendment does not address the difficult question of what is meant by being accused. As drafted, the prohibition on publicity would apply whether or not it is the police making the accusation. It seems to suggest that any accusation of a sexual offence would prevent publicity, but how far does this go?

Fifthly, the amendment fails adequately to address when the prohibition on publicity comes to an end. As drafted, the prohibition on publicity ends when the person concerned is charged with an offence. But let us suppose that the police decide not to bring charges and the person concerned is exonerated. Under this amendment, it seems that no publicity is allowed even at that stage—the person concerned cannot tell the world that he has been vindicated and the press still cannot report that a false allegation has been made.

[Lord Campbell-Savours]

The noble Lord has listed a number of objections. He is an eminent lawyer. How would he solve the problem in a way that enables people to protect their reputations when they are innocent?

[Lord Pannick]

The way that people protect their reputations is that we all have to emphasise the importance of the presumption of innocence. It is quite wrong that people such as the doctor to whom the noble Lord referred are subjected to serious detriment simply because an allegation has been made. That is the basis of English law: you are innocent until you are convicted. That is the principle and I do not accept that the nature of the problem justifies an amendment of this sort, which would lead to all the problems I have sought to identify.

[Viscount Hailsham]

My Lords, notwithstanding the very eloquent speech made by the noble Lord, Lord Pannick, I am in favour of this amendment, subject to one or two points I am going to make. If the noble Lord will forgive me, most of his points are drafting points, which could be dealt with by way of further discussion and a further amendment. I take the point that there are defects in this amendment but in my view, the principle that the noble Lords, Lord Paddick and Lord Campbell-Savours, are aiming at is correct and the arguments that have been advanced by the noble Lord, Lord Pannick, are not correct.

I have two reservations. First, I note that one of the principal mischiefs that this amendment should capture is not dealt with at all: communication by police officers to the press, often for money. I know perfectly well that that is covered by existing legislation and I have no doubt that communication by a police officer giving private information regarding accusations is contrary to the disciplinary code, but if we are moving an amendment of this kind, we should seek to catch the very serious mischief of police officers giving private information to the press.

Independent Inquiry into Child Sexual Abuse

Lord Pannick Excerpts

Tuesday 13th September 2016 Lords Chamber

[Baroness Williams of Trafford]

The noble Baroness makes a very important point. The chairman and the whole inquiry have the support of the victims’ and survivors’ group. As I have stated, the aim is to produce an interim report by 2018.

[Lord Pannick (CB)]

Does the noble Baroness agree that, for the inquiry to make so-called findings of fact about the alleged conduct of the late Lord Janner, and to do so without any intensive process of cross-examination of the witnesses, is grossly unfair to the reputation of someone who is unable to defend himself? Does she recognise that the inquiry is purporting to do more than look at institutional failings? I declare an interest as a friend of the late Lord Janner’s son, Daniel.

[Baroness Williams of Trafford]

My Lords, it is for the inquiry to consider the best way to conduct its investigations and hearings, and it would not be appropriate for me to comment. I understand that counsel to the inquiry set out the inquiry’s position on this issue at the preliminary hearing of the investigation into Lord Janner in July.

Immigration Bill

Lord Pannick Excerpts

Tuesday 10th May 2016 Lords Chamber

[Lord Rosser (Lab)]

In the Commons last night, the government Minister confirmed that the Government accepted that there should be judicial oversight of administrative immigration detention, and that was why they had previously tabled a Motion, the effect of which would be that individuals would automatically be referred to the tribunal for a bail hearing six months after their detention began, or, if the tribunal had already considered whether to release the person within the first six months, six months after that consideration.

That amendment was not accepted in this House, which again carried a Motion providing for a 28-day period of administrative immigration detention, after which the Secretary of State could apply to extend detention in exceptional circumstances. The Commons has again rejected the amendment from this House and has instead passed a government amendment reducing the timing of an automatic bail referral from six to four months, since, apparently, the vast majority of persons are detained for less than four months. Will the Government confirm that that bail hearing after four months of detention will be automatic and will not depend on the individual in detention having to initiate the application?

This is an issue which this House has already sent back to the Commons twice. Consideration obviously has to be given to the role of this unelected House in the legislative process as a revising Chamber, inviting the Commons to think again in a situation where the elected Commons and the Government have made some movement—albeit not enough to meet the views of this House—on the length of administrative immigration detention without automatic judicial oversight.

[Lord Pannick (CB)]

My Lords, the noble Lord, Lord Ramsbotham, made a powerful speech. I will say a word in response to it. I am sorry that the noble Lord thinks that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and I were focusing on the “periphery” last week and supporting a “fudge”, as he put it. Your Lordships need to focus on the noble Lord’s amendment. It provides that, after 28 days, there would be no possibility of detention of a person for immigration reasons other than in exceptional circumstances. Last week I found that not to be something that I could support and I still cannot support it, because a person can be detained only for the purpose of removal and only for a reasonable period for that purpose. There is nothing exceptional about it taking longer than 28 days to remove a person who has been detained for immigration reasons. There has to be discussion with the country to which the individual will be removed and persons being removed often do not co-operate with their removal. There is nothing exceptional about it taking longer than 28 days. Of course, the individual concerned is also entitled at any time to require a judicial assessment of whether it is appropriate for them to continue to be detained for immigration purposes. I am pleased that the Government have moved to a four-month period and I think that is the right result.

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

My Lords, I, too, support Motion A. I will confine myself to three comparatively brief points. First, as has been made plain, the Government have already moved from the earlier proposal of six months down to four. Yesterday, as those who have read the debate in the other place will know, there was barely a voice and no vote whatever against that proposal.

The noble Lord, Lord Ramsbotham, has few greater admirers than I in this Chamber but, as I suggested earlier, his amendment goes altogether too far. One defect is that it is internally inconsistent. I mentioned this on Report but did not think it necessary to do so in the last round of ping-pong, though I rather regret that now. On its face, it refers in new subsection (1) to detention under any of the relevant powers. These are defined in new subsection (6) and include two dealing with detention pending deportation. However, looking at new subsection (4) of Amendment 84, it does not apply in cases where the Secretary of State is determined that there will be deportation. This is an internal inconsistency.

I suggest that four months properly protects against any risk of what can seriously be called arbitrary detention. One must remember that it is a safeguard over and above the intrinsic ability of those who are detained to seek bail—a safeguard I acknowledge to be appropriate and necessary, not least in the case of those with mental health problems. The proposal in the amendment of the noble Lord, Lord Ramsbotham, that there should be exceptional circumstances to justify detention beyond 28 days, is unworkable. The Minister gave reasons and illustrations, as did the noble Lord, Lord Pannick.

A shorter period, as proposed by the noble Baroness, Lady Hamwee—of whom, again, I am a great admirer—is, frankly, impracticable. Tribunals are already hugely busy and overworked. They really must not be overwhelmed.

Immigration Bill

Lord Pannick Excerpts

Monday 21st March 2016 Lords Chamber

[The Lord Bishop of Chelmsford]

My Lords, I have two concerns in relation to this issue, to which I will speak briefly. First, in our prayers in this House and in homes across the country, we cry out to God that this terrible violence will cease and we look for any small contribution we can make to hasten its end. Secondly, we are determined that those inflicting such terrible suffering will be brought to justice before the International Criminal Court, where such atrocities are properly dealt with. There is, as we have heard, a growing consensus that the systematic violence of people operating in the name of Daesh is rightly described as genocidal. This is what people outside this House call it, whether they know or understand the legal definitions or not, and we need to be very mindful of what would be heard were we not to pass this amendment.

Legally, the matter turns on whether we are confronted by,

“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

I understand the caution of the Government and other experts about applying the word “genocide”. There are risks. Some worry that the strength and clarity of the legal definition of genocide could be somehow devalued if it is applied to such a complex set of conflicts as prevails in the countries involved. Some worry that the genocide label could encourage false understanding of the situation as conflict between different ethnic or religious groups. There is also the risk of removing Christians and members of other minorities from the area to a point where those minorities, with a long history and characteristic identity in that place, could become unviable. I smile at that—if not I would weep—because this is, of course, precisely what is happening at the moment. However, it is obviously something that we wish to avoid. Only last week, the right reverend Prelates the Bishops of Coventry, Southwark and Leeds visited these places and this was their primary concern.

However, we can live with those risks while trying to mitigate them. Our urgent prayer is for Christians, Yazidis and a variety of other identifiable groups against which the hatred of Daesh is directed, and, supremely, for each individual—each of them precious to God. Therefore, can the category of “genocidal acts” help to stop the killing and help to bring the perpetrators sooner to account for their crimes? Yes, I believe it can.

The role of the Supreme Court is a matter for those with expertise in legal and constitutional matters. However, I note the support of a number of distinguished jurists for applying the label of genocide. The ability of people in this category to submit asylum applications at British missions overseas offers a reasonable additional route, alongside the work of the UNHCR, in identifying and bringing for resettlement those at greatest risk.

The General Synod of the Church of England has declared that it wants the Government to work with the UNHCR to ensure that vulnerability to religiously motivated persecution is taken into account when determining who is received into Britain. It calls on the Government to work with international partners to help establish safe and legal routes for people to come to this country who are so at risk.

The force of this amendment, whatever the issues of detail, is simply that the word genocidal is not too strong for what is happening. The seriousness of the national and international response needs to take that into account.

Perhaps I may briefly quote a passage from scripture—not an obvious one on this occasion for this situation. I have always been very moved by what Jesus said after the miracle of the feeding of the 5,000. After they had all been fed, he said to the disciples: “Gather up the fragments. Let nothing be lost”. I believe that this amendment can help in a small way to address this situation, so that those who are most in danger of being lost could—maybe a few of them—be found.

[Lord Pannick (CB)]

My Lords, the noble Lord, Lord Alton, and other noble Lords who have spoken have made an overwhelming case that acts of genocide are being carried out by Daesh, and they have made an overwhelming case that it is shameful that Her Majesty’s Government are not prepared to say so. I cannot understand the basis on which Her Majesty’s Government assert that a judicial determination is required before they are able to say that genocide is occurring. I would be particularly grateful if the Minister, the noble and learned Lord, Lord Keen, were to explain why a judicial determination is required. Any such approach seems quite inconsistent with Article 8 of the 1948 genocide convention, which states:

“Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide”.

It is implicit in that that any contracting state is going to form a view that acts of genocide are taking place and in the light of that to make a request. I can see no basis whatever for the Government’s policy.

I have much more difficulty with the substance of this amendment because it proceeds on what seems to be the incorrect premise that a judicial determination is required in relation to genocide. I agree with the noble Lord, Lord Alton, and others that a judicial determination is not required before Her Majesty’s Government can state what their position is.

In any event, I am concerned that the substance of the amendment confuses the law relating to genocide with the different subject of refugee status. The genocide convention is concerned with the bringing to justice of the perpetrators of genocide in criminal courts, either the local court or the International Criminal Court. It is not concerned with refugee status; it makes no mention of the subject. This is not a technicality. What the substance of the amendment seeks to do is impose some obligations—we heard that they may not be very extensive—on the diplomatic mission of the United Kingdom abroad to accept applications for refugee status. It is a fundamental principle of refugee law, for sensible and practical reasons, that an asylum claim cannot be made at a consulate or an embassy of the United Kingdom in another country.

So I am not myself keen on the substance of this amendment, but I repeat that I share the concerns about the position being adopted by Her Majesty’s Government and their refusal to state publicly and importantly that acts of genocide are being carried out. If the noble Lord, Lord Alton, decides to divide the House, he will have my support precisely because I oppose the Government’s general policy in this area.