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

Debate between Lord Pannick and Lord Alton of Liverpool

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

[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 Bill

Debate between Lord Pannick and Lord Alton of Liverpool

Tuesday 26th April 2016 Lords Chamber

[Lord Alton of Liverpool]

My Lords, although I support my noble friend’s amendment, others have spoken to it and I do not wish to be repetitious. I supported the noble Baroness, Lady Lister, on Report: I was a signatory to her amendment then and I am very happy to support her again today, as I hope the House will.

I simply ask whether the noble and learned Lord, when he replies to the points the noble Baroness has set out, will say what his response is to the call by the Royal College of Midwives today for a review of the whole process, as the noble Baroness said. I remind the House of what Stephen Shaw found in his Review into the Welfare in Detention of Vulnerable Persons. He said that,

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

The Royal College of Midwives states:

“Even if a pregnancy is completely healthy and uncomplicated; the dignity and care that should be afforded all pregnant women is compromised by detention”.

I agree with what the noble Baroness, Lady Hamwee, said. My noble friend Lord Hylton and I visited Yarl’s Wood during the Bill’s passage. We raised the question of pregnant women and, although I personally believe that conditions at Yarl’s Wood have been very significantly improved, it cannot be right to keep pregnant women in any detention centre, and there must be alternatives to that. That is why it is so important to support the noble Baroness’s amendment today.

[Lord Pannick (CB)]

My Lords, I find this much more difficult than some noble Lords. Motion C1 in the name of the noble Lord, Lord Ramsbotham, would limit immigration detention to 28 days, save in exceptional circumstances. I cannot support that.

Immigration detention is confined to cases where there is a realistic possibility of removing the person concerned from this country within a reasonable time. The fact is that that often takes more than 28 days, because of the need to liaise with the country to which the person is being removed and because, very often, the individual concerned does not co-operate with the process.

Furthermore, the law requires that immigration tribunals refuse bail only in circumstances where there is a risk of the person absconding or some other substantive reason for keeping them in detention, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said a few moments ago. It is true, as the noble Lord, Lord Ramsbotham, pointed out, that many of the persons detained have mental problems and many of them do not speak English, but it is also true that many expert bodies provide much-needed advice and assistance—and properly so—to those who are detained. I cannot support a 28-day absolute limit, saving in exceptional circumstances, because the circumstances that I have outlined are far from exceptional; they are quite standard.

Motion C2 in the name of the noble Baroness, Lady Hamwee, would require a bail hearing every 56 days. This is more difficult. I think the Government’s position, approved in the other place yesterday, of a bail hearing every six months, is adequate. The reason is that it is a default provision. It is additional to the right of the individual, advised by all those expert groups, to apply for bail at any time, and to argue at any time that there is now no reasonable possibility of being removed, or that there is no good reason—for example, a fear of absconding—for detention.

I also mention Motions D1 and D2. Motion D1, in the name of the noble Baroness, Lady Lister, would prevent the detention of a pregnant woman, save in the most exceptional circumstances. The problem with that is that it would prevent the detention for removal of a woman who arrives at Heathrow Airport with no basis for entry and who can, if she is detained, be removed from this country, and rightly so, within a short period—for example if she is not making an asylum claim. That is not “the most exceptional circumstances”; it is a fairly standard case. Motion D1 would also, as I understand it, prevent in any circumstances the detention of a pregnant woman who is the subject of a deportation order but who refuses to go voluntarily, who can be removed within a very short period. I cannot support that.

Motion D2, in the name of the noble Baroness, Lady Hamwee, is again more difficult, but I am satisfied on balance that government Motion D is a very substantial change which will protect pregnant women, made in response to the amendment approved by this House.

We ought to bear in mind that what the Government have agreed under subsection (2) of the new provision is that a pregnant woman may not be detained under a relevant deportation power for more than 72 hours or for more than seven days where, and only where, such detention is authorised personally by a Minister of the Crown. The Minister in the other place, Mr James Brokenshire, has responded to the concerns expressed by this House and I am persuaded by the noble and learned Lord, Lord Keen, that this amendment, which was approved in the other place, should be approved.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Pannick and Lord Alton of Liverpool

Tuesday 27th March 2012 Lords Chamber

[Lord Pannick]

My Lords, this amendment is in my name and that of the noble Lord, Lord Alton of Liverpool. It seeks to confer on the Lord Chancellor a power to disapply provisions of Part 2 in particular categories of case. Noble Lords will know that Part 2 removes the power of the court to make unsuccessful defendants pay success fees and “after the event” insurance. Successful claimants would need to make these payments out of their damages. Concern has been expressed in your Lordships’ House that this may deter or prevent claimants bringing meritorious claims and may operate unfairly by effectively reducing the damages which they obtain. This concern has been expressed in a wide variety of legal contexts from industrial injuries to insolvency claims.

The Minister’s response to these criticisms has been to express the hope, and sometimes the belief, that Part 2 will not have the adverse consequences for access to justice which critics of these provisions fear. The reality is that neither the Government nor the critics of Part 2 can be sure what effect it will have on access to justice in practice. The Minister will, I hope, accept that it is possible that after the Bill is enacted and comes into effect, experience may show that in specific contexts the concerns expressed by those of us who are worried about the implications of Part 2 are justified, and that access to justice is being impeded.

This amendment would confer a discretion on the Lord Chancellor to respond to any problems that are seen to occur after enactment by excluding defined categories of case from the statutory provisions if he thinks it appropriate to do so. The new provision would confer a power in Part 2 equivalent to the Lord Chancellor’s power in Part 1 under Clause 9(2) to modify Schedule 1 in relation to the scope of legal aid—a power for the Lord Chancellor which the Government accepted was appropriate in Part 1. I cannot see why the Lord Chancellor would not wish to have such a discretion in Part 2 equivalent to that which is given by the Bill in Part 1. In neither context does the discretion impose any duty on him.

Parliament is unlikely for some time to have another opportunity to look at these important matters. Given the importance of the changes that we are making in Part 2, given the concerns that have been expressed about their impact on access to justice, and given that these matters may look very different indeed in some legal contexts in the light of experience after these changes are made, it is surely wise to add to the Bill a power for the Lord Chancellor whereby it would be entirely within his discretion to modify the effect by excluding categories of cases. I beg to move.

[Lord Alton of Liverpool]

My Lords, I shall be brief. I support the amendment in the name of my noble friend Lord Pannick. Just over a week ago, your Lordships were reminded by no less a person than Her Majesty the Queen that during her time as monarch she had signed more than 3,000 pieces of legislation enacted by Parliament. All of us who have been Members of this House and the other place know that we have a penchant for passing vast swathes of legislation that we never revisit subsequently. We all know that we sometimes legislate in haste and repent at leisure. I have had the feeling during the passage of this legislation that we will later regret some of the measures we have passed.

The problem then is what we are able to do about it. Although we sometimes add sunset clauses, and Select Committees can revisit legislation and make recommendations, we often do not put in the kind of belt-and-braces provision that my noble friend Lord Pannick has placed before your Lordships’ House this evening. It is eminently reasonable. It is perfectly good for Parliament to say that if things were to work out in the worst-case scenarios in the way that your Lordships at various stages in Committee and on Report have suggested may happen, and if the Minister is proved not to be correct in what I am sure he sincerely believes regarding the way in which this legislation will be interpreted in due course, there ought to be some way of doing something about it if it is to be found wanting.

Giving this discretionary power to the Lord Chancellor and making it consistent with Part 1, as my noble friend has just described, seems to be the perfect way of dealing with the problem. It is eminently reasonable and, like my noble friend, I cannot see any good reason why the Government would want to resist something that requires no expenditure and does not place on them any duty but simply gives them a discretionary power. I hope that the amendment will commend itself to your Lordships.