Counter-Terrorism and Sentencing Bill

Lord Parkinson of Whitley Bay Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the noble Lord, Lord Marks, set out his amendments clearly, and concentrated on the fact that the decision about a terrorist connection is made by a judge at the sentencing stage, not by the jury when they are assessing guilt or otherwise.

The noble Lord said that prior to the Bill, a limited number of offences were included. Those were serious offences, so his argument was that it did not make that much difference if there was a terrorist connection. He gave the example of ABH, for which the maximum sentence is seven years’ custody, although the penalty for low-level ABH may be some type of community order. His argument was that putting a terrorist connection on a wider range of lower-level offences would have a much larger effect on the likely sentence.

The noble Lord also spoke about activating notification requirements, and early release provisions. He prayed in aid the noble Lord, Lord Thomas of Gresford, who previously raised the possibility of Newton hearings. I am much more sympathetic to that possibility than that laid out in the amendments tabled by the noble Lord, Lord Marks, which would mean that either somebody admitted in open court that there was a terrorist connection or there would be a trial of the issue.

Surely that determination should be made by the judge. A judge could make a determination that a Newton hearing was the right way forward. Perhaps the Bill should be amended to enable the judge to make a determination for a Newton hearing, or to take it on himself or herself to make a determination of whether there is a terrorist connection. For that reason, we will abstain on these amendments—but if, at a later stage, amendments along the line that I have just suggested, giving the judge discretion to order a Newton hearing, are tabled, we may well be in favour of those.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to all noble Lords who spoke in this short debate. The amendment would require a trial of the issue as to whether there is a terrorist connection to an aggravated offence. I am grateful to the noble Lord, Lord Marks, for the way in which he set out his amendment, but I am afraid we feel that it would represent a fundamental departure from existing processes—a significant divergence from practice within the wider criminal justice system—and it is therefore not an amendment that the Government consider necessary or appropriate.

It may be helpful if I first briefly recapitulate why the Government are making the changes that we propose in the Bill. The noble Lord, Lord McCrea, gave a good summary. Clause 1 will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism, or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. At present only specified offences can be so considered. Closing this loophole will make for more effective and flexible legislation, reflecting the fact that terrorist offending takes a wide variety of forms.

The noble Lord, Lord Marks, gave some examples of offences that are and are not covered. It might be helpful to include further examples. Various offences under the Firearms Act 1968 are not currently covered, including possessing a firearm with an intent to endanger life; as are offences under the Criminal Damage Act 1971, including destroying or damaging property with an intent to endanger life, and arson. There are many more, but I hope that provides an illustration of some of the offences that we think ought to be considered, if needed.

These changes will also ensure that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact, as the noble Lord noted. It must be treated as an aggravating factor when sentencing, helping to ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk that they pose to public safety. It will also result in offenders being subject to the registered terrorist offender notification requirements following their release from prison, which supports the police to manage their risk more effectively.

Finally, under the Bill, these offenders will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk. I emphasise that both the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and the Crown Prosecution Service expressed their strong support for this change. In fact, Mr Hall stated in his oral evidence to the Public Bill Committee in another place that this change, out of all the measures in the Bill, would make the most substantial difference to public safety.

Having set out the background, I will address the substance of the noble Lord’s amendment, which proposes a significant change to the process by which the courts in England and Wales, and in Northern Ireland, determine a terrorist connection at the point of sentencing. This process is well-established, having been in successful operation for more than a decade since the provisions of the Criminal Damage Act 1971 came into force. It is also consistent with the wider criminal justice system.

Under the existing process, courts are required to apply the criminal standard of proof—beyond reasonable doubt—when determining whether an offence has a terrorist connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing—that is, the trial evidence or evidence heard at a Newton hearing, if necessary, following a guilty plea—and take into account any representations by the prosecution or defence, as well as any evidence heard.

Furthermore, in England and Wales, and in Northern Ireland, it is the standard approach for the judge, rather than the jury, to determine the presence of aggravating factors as part of the sentencing function. To provide one example, Section 66 of the Sentencing Act 2020 requires the court to aggravate a sentence for an offence if it was motivated by hostility based on certain protected characteristics, such as race or sexual orientation. The judge will determine such a finding as part of the sentencing. The terrorist connection provision works in exactly the same way. This very issue was debated by your Lordships’ House in 2008, when the terrorist connection provisions were first enacted. It was concluded then that the existing process is appropriate and the reasons that I will now outline still stand.

During the passage of the Counter-Terrorism Act 2008, the then Government set out that, as part of their consultation on that Bill, they considered whether the determination of a terrorist connection should be made by the jury, rather than the judge at sentencing. That included discussing the option with experienced prosecutors in this area. It was concluded, however, that there were significant practical issues in taking that approach. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions, were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Such an approach would divert the prosecution from its primary aim to secure swift justice for the substantive offence—that is to say, securing a conviction or freeing the individual on trial—and would unnecessarily create significantly longer terrorism trials.

Alternatively, if the jury were to be responsible for determining whether there was a terrorist connection as part of a sentencing exercise after the trial, it would have to be summoned to make such a determination following a guilty plea. This would be entirely novel and run counter to well-established sentencing procedure. We therefore strongly believe that it would not be right to put it in the Bill. It was concluded then, as we maintain now, that sentencing is properly a function for the judge.

That is why the Government cannot accept the amendment of the noble Lord, Lord Marks: it would impose unusual requirements on the finding of a terrorist connection, deviate significantly from well-established practice and, in doing so, put that process out of kilter with the courts’ considerations of other similar aggravating factors. The current system provides adequate safeguards against the erroneous finding of a terrorist connection. A judge who has determined that the offence was committed with a terrorist connection is required to state in open court that that is the case. That determination is capable of being appealed to the Court of Appeal. For the reasons outlined, despite the noble Lord being minded to do otherwise, I hope that he will see fit to withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I heard what the noble Lord, Lord McCrea, said, and he seemed to accept that the aggravating factor should be proved to a court, on admissible evidence, to the criminal standard of proof. He did not answer the point that there ought to be a trial of the issue.

The noble Lord, Lord Ponsonby, had sympathy for the principles behind our amendment. He preferred the idea of a Newton hearing before a judge to the possibility of jury trial to determine a terrorist connection. That is a compromise position that is allowed for in my amendment, where the interests of justice require that there should not be a jury trial. The important thing is that this issue should be tried on evidence, not simply permission for there to be evidence, if the judge deciding the issue decides to have evidence; or, otherwise, that the court must listen to representations—that is submissions, which are necessarily partial.

The reason our amendment is framed in the way it is is that we believe in trial by jury. Since the aggravation of having a terrorist connection changes the whole nature of the offence, to have that issue tried by jury is, we say, consonant with our way of doing criminal justice and consonant with the way we have always conducted criminal trials.

The Minister suggested that this amendment represented a significant divergence from the criminal justice system. Most of his speech was, with respect, devoted to establishing that point. However, the Bill and much of the counterterrorist legislation of the last few years have involved such divergence. What is unique about the Bill is that the aggravating factor can raise a pretty commonplace offence into an offence of terrorism, with very severe consequences. I have heard nothing to answer the point that establishing that terrorist connection in a trial, on admissible evidence, before a jury or, in suitable cases, a judge, should be the way to proceed.

Nothing that I have heard from the Minister or the noble Lord, Lord McCrea, allowed for the possibility that an offender guilty of only the basic offence, but not guilty of committing an offence with a terrorist connection, would nevertheless be sentenced following a judge who heard only representations on the basis of the aggravated offence, with all the consequences that that would have. That is what runs counter to our criminal justice system.

Our point is limited and principled. The Government have made no concession to our principle at all. We say that there has to be a trial of the issue, not at the same time as the trial of the basic offence, but afterwards. To establish that principle, I wish to test the opinion of the House and have my voice heard when the voices are counted.

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Moved by

[Lord Parkinson of Whitley Bay]

14: Clause 34, page 29, line 21, leave out “has reasonable grounds for suspecting” and insert “reasonably believes”
Member’s explanatory statement
This amendment would change the proposed new test for the imposition of a terrorism prevention and investigation measure from one of reasonable suspicion of involvement in terrorism-related activity to one of reasonable belief of such involvement.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, in moving Amendment 14, I will speak also to Amendment 22; both stand in the name of my noble friend Lord Wolfson of Tredegar. I will respond to the other amendments in this group at the end if the noble Lords in whose names they stand speak to them.

The Government have listened to the mood of your Lordships’ House as expressed in Committee, specifically the concerns of a number of noble Lords about lowering the standard of proof for imposing a TPIM to “reasonable grounds for suspecting” involvement in terrorism-related activity. The Government have reflected on those concerns and tabled these amendments. On behalf of my noble friends and myself, I thank all noble Lords who engaged with us since Committee as we did so.

Amendment 14 will lower the existing standard of proof for imposing a TPIM of “balance of probabilities” to “reasonable belief”. However, this is a higher standard of proof than originally proposed by the Bill, and a higher standard than was applied under the previous control order regime.

As a result of this amendment, the Home Secretary will need to “reasonably believe”, rather than hold “reasonable grounds for suspecting”, that an individual is, or has been, involved in terrorism-related activity before she can impose a TPIM. In practice, and as noted by the noble Lord, Lord Anderson of Ipswich, in Committee, “reasonable belief” is closer to the current “balance of probabilities” standard than it is to “reasonable suspicion”. It is the standard that applied when TPIMs were first introduced in 2011 and the standard that is in place for other key tools used to counter terrorism, including proscription and asset-freezing orders.

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[Lord Falconer of Thoroton (Lab) [V]]

This is an incredibly important debate, because it goes very much to the heart of the views we take on what the Executive can do. It is anathema to our system that the Executive can impose restrictions on individual citizens on the basis of either the balance of probabilities or, worse, reasonable suspicion. Any restrictions placed must be justified, normally in a criminal court or, in the context of the current pandemic, by an exceptional event such as the pandemic.

All those who have engaged in this debate have accepted the need for some form of TPIM. On behalf of my party, I accept that too, but all our instincts should say that it should be on the most limited ground necessary at any point. I strongly opposed, as my party did, the idea that one can impose a TPIM on the grounds of suspicion alone and welcome Amendment 14, in which the Government reject that approach and go for a situation where the Minister “reasonably believes” that the person has been engaged in terrorist activity. The difference between “reasonably believes” and “balance of probabilities” seems in practice quite difficult to define; the Minister has to believe that the person has been engaged in terrorist activity and he or she must have reasonable grounds for believing so. What is the difference between having reasonable grounds on one hand and believing it on the balance of probabilities on the other, when the person who will test that is the courts? I think it is quite fine, but we will support government Amendment 14. I am grateful that they have listened; it is a very significant shift. The difference between honestly and reasonably believing something and suspicion is significant.

I am very disappointed that the Government persist in the idea that, once you have the basis for a TPIM, you can roll it over indefinitely. As various noble Lords have pointed out, the inclination of the Executive will be to roll these things over without further evidence. Therefore, we on this side of the House will also support Amendment 16.

Four years is a long time, longer than allowed at present and, what is more, the four years can be extended if new evidence emerges during that four-year period. We think there should be a limit on when a TPIM can be granted, where there is evidence for it. We would need new evidence to extend it beyond the four years. We think that four years is a long time, but we recognise that if the House backs this four years, that is the basis for a compromise we very much hope the Government will accept.

Amendment 22 would compel the Independent Reviewer of Terrorism Legislation to conduct an annual review in relation to TPIMs. I think that is right. I agree with everybody who has said that the independent reviewer has to be properly resourced to do it. This is such an exceptional power that I think it is right that the independent reviewer should look at it every year.

On the proposition that there needs to be a limit on the period of restriction that is required in a particular home, because the power is going to be amended to remove the reference to “overnight”, the Government have given assurances that there will be such a limit, because of the courts’ imposition of limits to ensure that nobody is imprisoned in their house for 24 hours a day, which is what the noble Lord, Lord Strasburger, said the consequences of the section would be. That is not my understanding, legally, of the consequence of the removal of “overnight”, but I would like the Minister to repeat that assurance and also to say that if the court protection went, the Government would come back to ensure that it could not involve 24-hour imprisonment, in effect, in a particular house.

These are exceptional powers. Our role in this House is to ensure that they are subject to specific limits. I think the combination of government Amendment 14, Amendment 16, in the name of the noble Lord, Lord Anderson, and government Amendment 22, which would compel an annual review, is a workable compromise. I am very disappointed that the Government are not accepting it at the moment.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, before I turn to the amendments to which I have not yet spoken, I will address a question from the noble Baroness, Lady Hamwee, on government Amendment 22, about the requirement for the independent reviewer to produce an annual report every year for the next five years. She is right to say that the independence of the independent reviewer means that he could, if he so wished, provide such a review, but we want to ensure that he does so, because of the changes that are being made by the Bill. We, like a number of noble Lords who cited his work and that of his predecessors, find them useful and would find it useful to receive them over the next five years. We do not think that is unduly burdensome, as the noble Baroness suggested it might be. Indeed, that is evidenced by the support of the current independent reviewer, Jonathan Hall, for the amendment. I hope that that reassures her on that point.

I turn to the amendments. Amendment 15, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 34 in its entirety, and in doing so prevent the Government lowering the standard of proof for imposing a TPIM to “reasonable belief” of involvement in terrorism-related activity. As I set out earlier, the Government have listened to the concerns raised in Committee and brought forward a compromise, by lowering the standard of proof to a lesser extent than originally envisaged; namely, “reasonable belief” instead of “reasonable grounds for suspecting”. We are confident that this approach represents an appropriate middle ground, one that ensures we are taking action to protect the public from an evolving and more diverse terrorist threat, while addressing the concerns that were expressed in Committee. Of course, “reasonable belief” is a standard which has been used in the past, having first been introduced in 2011 by the coalition Government, which included the Liberal Democrats as well as my own party.

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[Baroness Hamwee (LD) [V]]

The Minister just referred to the number of hours in the day for which the restriction may apply. Why have the Government decided, assuming that the decision is positive, not to include in the Bill a total limit per day? He referred to Article 5 but would it have been more convenient for the Government, let alone TPIM subjects—the noble Lord, Lord Anderson, had a good deal to say about the problems of pursuing applications to the court—not to allow the prospect of getting caught up in proceedings challenging the total number of hours?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the simple answer for not including that in the Bill is that we do not think that it is necessary to do so. The case law exists and has established that in practice the residence measure placed on a TPIM subject could not likely exceed 16 hours a day without constituting an unlawful deprivation of their liberty. However, measures are imposed and tested in the courts on a case-by-case basis, and that is the appropriate way to proceed.

Amendment 14 agreed.

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[Lord Falconer of Thoroton (Lab) [V]]

My Lords, the effect of the Bill at the moment is that a condition of a TPIM can be that the subject takes a polygraph test, and that a failure to do that could be a breach of the TPIM’s provisions. Amendment 21 raises the question of whether that should be part of a potential TPIM. In answering that question, it is important to try to find out what the Government have in mind regarding the use of that provision. First, to what extent do they regard polygraph answers as reliable? There is a general view that they cannot be taken on their own. What is the Government’s view on that?

Secondly, will the Government introduce a code of practice, as envisaged by Amendment 19? If so, could they give some indication of what that would contain? In particular, would it be based on the American Polygraph Association’s code of practice?

Thirdly, in December 2020 Her Majesty’s Prison and Probation Service announced that it would be seeking a long-term commercial partner to deliver polygraph equipment, training and support services for the sum of £2 million. When this was announced by the Government, it was noted that any partners must provide training to the standard approved by the American Polygraph Association, which is a trade body. Can the Minister give an indication of how that is going?

Will the Minister confirm that the Government will not act solely on the basis of any physiological reaction of the individual while being questioned in the course of a polygraph examination, and that the effect of a “significant reaction” in a polygraph examination will simply lead to further inquiries being made?

There has been, over quite a long time, a legitimate—in the sense of authorised by legislation—use by the Home Office of polygraph tests in relation to sexual offenders. According to Home Office figures, over the last five years 5,228 mandatory polygraph examinations have been carried out on 2,249 sexual offenders. Will the Minister describe to the House what benefit has been obtained from this and the basis of any assertions of that benefit?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the three amendments in this group stand in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. Amendment 19 would oblige the Secretary of State to publish a code of practice on the conduct of, and use of results from, polygraph examinations, with a requirement to consult appropriate parties on the code before its publication.

We think that such an amendment is not necessary, since equivalent provision is already made by new paragraph 10ZA, which Clause 38 of the Bill will insert into Schedule 1 of the TPIM Act 2011. As the noble Baroness, Lady Hamwee, noted, Clause 38 includes a regulation-making provision for the conduct of TPIM polygraph examinations. The new polygraph measure will not be used within the TPIM regime unless and until such regulations have been made.

These regulations are expected to include detail on, for example, the qualifications and experience needed by polygraph operators; how records of the polygraph examinations should be kept; and how reports on the results of the examinations should be prepared. This will ensure transparency in how the polygraph measure in the TPIM regime will be applied in practice.

This approach follows the practice already established by the Ministry of Justice, which has set out its use of the polygraph in licence conditions of sex offenders in the Polygraph Rules 2009. Parliament will have the opportunity to scrutinise these future regulations and they will, of course, be subject to annulment by your Lordships’ House or the other place. As such, we believe that Amendment 19 is unnecessary, and I urge the noble Baroness to withdraw it, as she indicated she might.

Amendment 20 seeks to prohibit the extension of a TPIM notice on the basis of information derived from a polygraph test. Again, we do not think this is necessary. Clause 38 specifies the purposes for which the Home Secretary may impose a requirement on an individual subject to a TPIM notice to participate in polygraph examinations. These are, first,

“monitoring the individual’s compliance with other specified measures”

and secondly,

“assessing whether any variation of the specified measures is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.

The reference in new heading (ii) to

“variation of the specified measures”

means variation of the measures set out in Schedule 1 to the TPIM Act 2011, and the duration of the TPIM is not one of those measures. Extension of the TPIM for a further year can be done only by relying on the power in Section 5 of that Act, not by way of varying measures. Therefore, any attempt to use information derived from a polygraph examination to extend the duration of a TPIM notice would be unlawful. I hope that provides some assurance to the noble Lords and that they will therefore be willing not to press Amendment 20.

Finally, Amendment 21 would remove the addition of a polygraph measure to Schedule 1 to the TPIM Act 2011 entirely. The Government cannot accept that. Adding a polygraph measure to Schedule 1, where the measure is assessed to be necessary and proportionate, will help our operational partners to assess an individual’s compliance with his or her TPIM notice. This might include being asked whether engagement with rehabilitation programmes is genuine or whether someone is, for instance, meeting prohibited associates. The insights gained from a polygraph examination will support decision-making on whether the TPIM notice should be varied, including the relaxation of measures or further restrictions.

The polygraph measure will not be mandatory for all TPIM subjects. It will be used sparingly and only where necessary and proportionate to restrict a subject’s involvement in terrorism-related activity. Whether it is judged necessary will be determined by the Security Service on a case-by-case basis and a recommendation will be made to the Home Secretary.

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Moved by

[Lord Parkinson of Whitley Bay]

22: After Clause 40, insert the following new Clause—
“TPIMs: annual review
(1) In section 20 of the Terrorism Prevention and Investigation Measures Act 2011 (reviews of the operation of that Act)—(a) after subsection (1) insert—“(1A) The independent reviewer must carry out a review under this section in respect of each calendar year starting with 2022 and ending with 2026.Each review must be completed as soon as reasonably practicable after the year to which it relates.”;(b) in subsection (2), after “calendar year” insert “after 2026”;(c) in subsection (4), for “subsection (2)” substitute “this section”;(d) after subsection (6) insert—“(7) Subsection (1A) does not require a review to be carried out in respect of any calendar year during the whole of which the Secretary of State’s TPIM powers (within the meaning given by section 21(8)) do not exist because of their expiry or repeal under section 21.”(2) Subsection (1) does not affect any duty to carry out a review further to a notification given under section 20(2) of the Terrorism Prevention and Investigation Measures Act 2011 before the coming into force of this section.”Member’s explanatory statement
This amendment would reinstate the requirement for an annual review of the Terrorism Prevention and Investigation Measures Act 2011 by an independent reviewer for a period of five years beginning with 2022 (with reviews at the discretion of the reviewer after that period).

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[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, this has been an extremely brief debate and quite a blunt one. The noble Lord, Lord Paddick, was very clear: during the passage of a previous Counter-Terrorism Act this House voted for a deadline and this current legislation is seeking to remove it. The Government commissioned an independent review back in January 2019, which has been repeatedly delayed and postponed, and the initial statutory deadline of 12 August 2020 will now be missed. The Government have said that they intend to have a report ready by summer 2021. Indeed, as the noble Lord, Lord Paddick, said, he has been very generous by putting in his amendments a deadline of the end of this current calendar year.

In the contribution of the noble Lord, Lord Anderson, to this short debate I noted a tone of exasperation, and I do not blame him or the noble Lord, Lord Paddick, for using such a tone. I really do not see why the Government cannot reaffirm their commitment to a deadline and I will be very interested to hear the Minister’s response to both noble Lords.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this amendment, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would add a new statutory deadline of 31 December this year for the completion of the independent review of Prevent. I am happy to say once again that we share the noble Lord’s and noble Baroness’s commitment to a successful independent review and the opportunity that it provides to learn lessons from what is and is not working—as well as to listen to a wide range of voices about how best to safeguard those who may be vulnerable to being drawn into terrorism.

The review restarted on 26 January, with the appointment of William Shawcross as the new independent reviewer. As I undertook to do in Committee, I am pleased to say that my noble friend Lady Williams of Trafford has had a conversation with Mr Shawcross about the timescale for his review. He certainly agrees with the need to complete it as swiftly as possible, while affording it the consideration that it requires. He hopes to complete his work well before the end of 2021, and of course there will then need to be time for a government response to be prepared and laid before Parliament. However, it is out intention to set out the date of his report and, indeed, the Government’s response in the revised terms of reference, when they are published shortly.

The noble Lord, Lord Anderson of Ipswich, referred to the remarks of my right honourable friend James Brokenshire, made in his first stint as Security Minister, about government responses being swift and timely. I hope the greatest reassurance to the noble Lord is the fact that my right honourable friend is back in that important post, albeit currently recuperating from his operation, from which we all wish him a speedy recovery. I am sure his remarks then stand now, as they do for my noble friend Lady Williams of Trafford, who is covering while he recuperates.

We all agree that it is necessary to have a thorough, evidence-based review that engages communities and sees Prevent delivery in action and that has practical recommendations for improvement at the end of it. We fear that, at a time when fleetness of foot is vital, a statutory deadline could limit this. We referred in Committee to the ongoing pandemic; alas, it continues now we are on Report, and I hope noble Lords will all be mindful of the need for flexibility in light of it.

Mr Shawcross is keen to proceed at pace, as I say, but reintroducing a statutory deadline for the completion of his independent review would mean that, if he encountered a challenge to his timeline because of the pandemic, we would have to revisit the legislation or he might be forced to compromise in how he meets his objectives. Of course, we hope that there will not be any difficulties, but there remains a risk of further or ongoing restrictions, with all the unpredictabilities of the pandemic and the implications that that could have for Mr Shawcross, his team and those who wish to provide their input into the review. As such, we think that that remains sensible.

We believe that it is achievable for Mr Shawcross to complete his work quickly, while undertaking a thorough and robust piece of work—but it is important for the legislation to retain the flexibility for the reviewer, should he need it, to ensure that the valuable work of his review is not undermined. I hope that the noble Lord, Lord Paddick, will agree and, therefore, withdraw his amendment.

[Lord Paddick (LD) [V]]

My Lords, I thank the noble Lords, Lord Anderson of Ipswich and Lord Ponsonby of Shulbrede, for their support for this amendment. The frustration that I and the noble Lord, Lord Anderson, expressed about the Government’s tardiness in reporting to Parliament on these issues has been reinforced by what the Minister has just said.

Not only has the Minister now turned away from what he said in Committee—that the Government anticipated that the report would be complete by the autumn—but he is now saying, “Of course, but then the Government will need time to respond to it.” This is absolutely the reason why we wanted this amendment in the Bill, and the Minister is showing complete contempt for what the noble Lords, Lord Anderson and Lord Ponsonby, and I have been saying.

I am sorely tempted to divide the House on this, simply to make the point. However, bearing in mind the time, I will reluctantly beg leave to withdraw the amendment.

Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020

Lord Parkinson of Whitley Bay Excerpts

Tuesday 8th December 2020 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

I am very grateful. I am sorry if there has been a glitch. I was ahead of the noble Lord, Lord Ponsonby, on the list that I received this morning.

I do not mind mistakes—everybody makes them—and the helter-skelter of amending the statute book in time for our leaving the EU has no doubt led to many errors in the wave of 2019 regulations put before us. If the mistakes could not be spotted at the time by government lawyers, perhaps the opposition parties can be forgiven for letting them through. I understand that another SI to amend mistakes is in the pipeline, similar to this, and I would expect others to follow.

First, the 2019 civil jurisdiction and judgments regulations inadvertently broadened the special jurisdiction rules, with the effect that a larger group of employees than the Government intended would be able to sue employers in UK courts. Secondly, the jurisdiction and judgments family rules contain two minor errors. The first are references to “actions for adherence and aliment”, concepts that had been abolished in Scots law before I ever came to know that they existed and, secondly, they inadvertently took away jurisdiction from the Scottish court to hear claims for aliment not connected to divorce or other proceedings.

The 2019 cross-border mediation regulations did not take into account alterations made by the Employment Act (Northern Ireland) 2016. Similarly, family procedure and Court of Protection rules contained minor errors. Two of the civil judicial co-operation exit instruments of 2019, which are very important to ensure co-operation with our former European partners, have been overtaken by the provisions of the withdrawal agreement.

I welcome this SI not so much for what it contains but because of its limited purposes—to use the powers that have been granted under various statutes to put right mistakes. There is nothing grandiose about it. The objection, that we hear so much, to the use of Henry VIII powers arises when they purport to carry into effect policy, not when they rectify errors, as here. By contrast, the powers to make secondary legislation that have been so offensive—the ones put back last night into the United Kingdom Internal Market Bill and abandoned this morning—were not just those which would have permitted a Minister to break the law and are contrary to the rule of law championed for so long by this country; that offence was compounded on this occasion by the unprecedented attempt to give such unlawful secondary legislation the status of an Act of Parliament, so that the use of unlawful powers could not be challenged in the courts by judicial review. The proposal was an extraordinary and unprecedented step, which I hope will never be repeated.

Today is an interesting day, not just for last night’s reassertion of illegality by a pack of Tory MPs, but as the day that the Prime Minister heads off to meet the head of the European Commission to assert the primacy of British sovereignty, having desperately weakened his own bargaining position by demonstrating that the United Kingdom cannot be trusted to keep its word. But I must be up to date. Perhaps honour has been saved this morning, not by the tooting John Soane-ian cavalry coming over the hill, but by that parfit gentil knight in tarnished armour, Michael Gove, the man the Prime Minister most trusts above all others to put a drooping lance into his back—ironic, is it not?

I take the Whig view of history: that, steadily but assuredly, humanity progresses from darkness into light. Such progress involves the necessary recognition of the rule of law, of human rights, and of international co-operation as an expression of our common humanity. In my lifetime, there has been progress. The forces of fascist dictatorship were crushed in the Second World War. International institutions such as the United Nations and its many agencies were created in its aftermath. Domestically, the welfare state, which had its origins in the reforms of Lloyd George in the early part of the 20th century, progressed and was entrenched. It gives us the National Health Service, and today, V for vaccination day.

However, in the last few years, progress has stumbled. Narrow nationalism proclaimed by populist leaders has re-emerged, blinking, into the light. The most notable instance has been the Donald Trump years—America first, when international co-operation in tackling climate change was abandoned, alliances were broken, the international order challenged, and internally, the concept of welfare, as illustrated by Obamacare, was attacked. It was all un-American.

Today, Mr Johnson will, in the Trump tradition, be arguing for British exceptionalism—Britain first. He will be asserting a faded—

[Lord Parkinson of Whitley Bay (Con)]

I wonder if the noble Lord, with his Whiggish view, could come back to the regulations in hand.

[Lord Thomas of Gresford (LD) [V]]

I am just about to complete. I was about to say that Mr Johnson will be asserting a faded and outdated concept of Machiavellian sovereignty for which Charles I lost his head and the British Empire went to the wall. Not much to do with this statutory instrument, you may think—as the noble Lord who interrupted suggested, and he was right—but this proceeding does for once give me a platform to add a very small footnote to what is an historic day.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Parkinson of Whitley Bay Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

Lord Rosser, we are losing you—we cannot hear you.

[Lord Parkinson of Whitley Bay (Con)]

I think we might have lost connection with the noble Lord, Lord Rosser. If he can hear us and forgives us, I think we should move on to hear from the Minister.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

I now call the Minister, the noble Baroness, Lady Williams of Trafford.

Human Rights Act 1998 (Remedial) Order 2019

Lord Parkinson of Whitley Bay Excerpts

Thursday 3rd September 2020 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

My Lords, I welcome this order with some reservations and queries. It is important that where the European Court of Human Rights has found that UK legislation is incompatible with the European convention, that incompatibility should be removed. The fact that parliamentary proceedings are required to do that should satisfy anyone who groans under the yoke of the European Court of Human Rights, and its judgments are not effective without the approval of the UK Parliament. However, I would like to raise three queries.

The first is the use of the Schedule 2 procedure in this instance. Section 10(2) of the Human Rights Act provides that a remedial order may be made to amend legislation to remove the incompatibility which has been found if the Minister of the Crown considers there are “compelling reasons” for proceeding under that section. Since the procedure can be used not only to amend primary legislation but to amend it retrospectively, as in this case, it is obvious that Parliament wishes to place some restriction on the Minister’s powers.

In this instance, paragraph 7.3 of the Explanatory Memorandum gives as the “compelling reason” that

“current pressure on the legislative timetable means there is little prospect of using primary legislation.”

That is the main reason given. It also states that

“the nature of the incompatibility contributes to there being compelling reasons for making the necessary legislative change swiftly.”

I rather doubt that. This order is retrospective, so I cannot see what need there is for speed.

Can the Minister confirm that there are a number of outstanding cases where claims for damages have been brought against courts or tribunals which would previously have been caught by Section 9(3) of the Act but which will be acceptable under this new remedial order? If there is not such a queue, how can the Minister justify the use of the word “swiftly”? There has not been a moment in the years I have been contributing in this House when the Government could not raise the excuse of “current pressure” on the legislative timetable.

My second query relates to the identity of the defendant in a case such as this, and that raises the question of judicial immunity. Mr Hammerton’s complaint was against the county court judge who failed to inquire about, let alone to grant him, legal representation in the proceedings in which he imprisoned him for contempt of court. Having succeeded on appeal in quashing that order of imprisonment, and having served his period of imprisonment, Mr Hammerton brought proceedings for damages in the High Court. He also had to apply for leave to bring proceedings out of time. The report does not make it clear whether the judge personally was the defendant or whether the proceedings were brought against the county court in which the judge sat. Section 6(1) of the Human Rights Act states:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”


Subsection (3) defines a public authority as including,

“a court or tribunal, and … any person certain of whose functions are functions of a public nature.”

Of course that could include a judge.

For the purpose of clarity, and considering the question of judicial immunity, can the judge be sued personally for a breach of convention rights, such as here, and is he personally liable for damages? I assume that the policy behind Section 9(3), as it stood, was to protect the judge personally, provided he acted in good faith. It is conceivable that a judge—perhaps it was more likely in the past than it is today—might act so outrageously as to lose any claim to be acting in good faith.

Finally, having regard to the findings of the Court of Appeal in the Hammerton case, are civil judges routinely instructed on their powers of imprisonment or of punishment in contempt of court cases? Certainly judges and magistrates in the criminal courts are made fully aware, time and again, in lectures and communications, of their powers and their responsibilities where any question of imprisonment arises. A magistrate would have immediately appreciated the problem had he been present. It was a very basic error for the judge to use his power to imprison without even inquiring whether Mr Hammerton had legal advice and assistance.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Lord, but we are quite tight on time and we are close to time already.

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

My Lords, this is an important application and I think it is right that I should refer to a very interesting paper by Professor Richard Ekins, who is professor of law and constitutional government at the University of Oxford. He argues that this order is ultra vires and unconstitutional. On the first point, he argues that the provisions of Section 10 of the Human Rights Act are of a type that should be construed strictly, and so construed do not allow amendment of the Human Rights Act. On the second point, his argument is that this order amending the Human Rights Act is an unusual and unexpected use of the Section 10 power, and accordingly it is inappropriate.

It will be seen that these two arguments are closely linked. While I see how the argument has been skilfully deployed, I think it construes the power of Section 10 too strictly, since the Human Rights Act is primary legislation and makes no exception of itself. Indeed, the power is contained in the Human Rights Act perhaps because that Act is so closely related to the convention that some incompatibility within it was foreseeable. This incompatibility is the source of the trouble that appeared here.

In my view the situation is such that Section 10 applies. I agree that the constitutional position of judges must be carefully taken into account, but it is fair to say that the Court of Human Rights really depended on the nature of the procedure, which had resulted in the then accused being sentenced for contempt of court to imprisonment. It was—I hope—a very exceptional case, but one which could arise in the circumstances, creating an incompatibility between the right to damages on the one hand and the failure to give the right of damages on the other, except in a case to which the section exempting the judicial honesty from such a result may apply. It was thought, correctly I think, that the amendment proposed here kept in place that judicial immunity while at the same time compensating the accused person—the applicant—for what was construed as a procedural error.

It is quite a tricky position. When the original application was put in, I am told that the then Lord Chancellor considered the matter with the judiciary and concluded that it was right to apply for the order. I support that judgment now and would support the grant of the order in the circumstances.

Queen’s Speech

Lord Parkinson of Whitley Bay Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Parkinson of Whitley Bay (Con) (Maiden Speech)]

My Lords, it is a privilege to rise to speak here for the first time, particularly to do so following the noble Lord, Lord Green of Deddington, who is right to remind your Lordships of the large number of people who are concerned about the rapidly growing population and the contribution that net migration makes to that.

This is only my 12th day sitting in your Lordships’ House. In ordinary times, I might have waited a little longer before venturing to make my first utterances, but this is already my second Parliament and we have just had the second Queen’s Speech in almost as many months, so I thought I had better get my skates on.

Despite arriving in the middle of such a busy period, I have found the staff of the House to be extremely kind, generous and helpful, answering all my many trivial questions and providing directions with great patience despite the many burdens on their time. Most of all, I am grateful to them for not mistaking me for somebody’s son or parliamentary assistant who has taken a wrong turning.

I am particularly grateful to my supporters, my noble friends Lord Lexden and Lord Lamont of Lerwick, who have given me valuable guidance and support, just as they have over many years, and to noble Lords from all parts of the House who have been so very warm and welcoming.

Of course, the election that we have just seen has changed a great deal. I had anticipated using my maiden speech to tell your Lordships how much I looked forward to speaking up for the north-east of England, a part of the country which does not normally benefit from a loud chorus of Conservative voices, but now I find that I come from the new Tory heartlands and need only be a backing singer to the 10 Conservative MPs who represent the region in another place. None the less, I look forward to working with them and people from all parties and none who want to help a part of the country that I hold particularly dear.

My native area held out against the Tory tide at this election, despite being for many years a dependably Conservative part of the north-east. Whitley Bay stands in the Tynemouth constituency, which for many years was represented by a trailblazing Tory woman, Dame Irene Ward, later a Member of this House and clearly fondly remembered as Baroness Ward of North Tyneside. I know that I do not need to tell the noble Baroness, Lady Quin, anything about Whitley Bay, for she also has the pleasure of hailing from there, but for those of your Lordships who have not yet had the pleasure of visiting, I would heartily recommend it. You will find a place fizzing with great spirit, friendliness and creativity. If your Lordships had been there this time last week, you would have seen 300 hardy souls running into the North Sea for the traditional New Year’s Day dip. I am afraid to say that I was not among them, but their bravery has certainly inspired me as I dip my toes into these rather warmer waters for the first time.

A particular privilege of entering your Lordships’ House at a relatively youthful age is the chance to do so in the sight of both my parents. I am sure that other noble Lords, however and whenever they came to this place, did so deeply conscious of the gratitude that we all owe to our families, and I am very glad to have the opportunity to express mine directly.

I hope your Lordships will also permit me to pay tribute to the former Prime Minister, Theresa May, my boss for much of the last seven years. First at the Home Office, and then in Downing Street, I had the privilege of seeing at first hand her dutifulness, her resilience and her strong devotion to public service. I am sure that these qualities will continue to inspire many in public life, particularly those of us who have come here by her nomination. I look forward to speaking in your Lordships’ debates with my own voice, while drawing on all that I learned during those years in government. To that end, I am particularly glad to see the domestic abuse Bill among the measures in the Queen’s Speech. Its provisions will transform and, in many cases, save lives. It has already been far too long in reaching the statute book and I hope it will have a swift passage from hereon in.

I am not only a Conservative and a unionist, I am a Tory and therefore respectful of tradition—not least, today, the sensible tradition of steering clear of contentious topics in one’s maiden speech. However, when a figure as esteemed and authoritative as Lord Sumption is among those who have pointed to the growing tendency to resolve in the courts matters which, even earlier in my short political career, would have been matters for Ministers, accountable to Parliament and to the electorate, I feel safe in welcoming the Government’s plans to establish a constitution, democracy and rights commission.

The Supreme Court turned 10 years old only in October. Even without the controversies of recent months, I think that this would have been a useful time to take stock and examine how it is working and how it has developed. I am glad that there will be a chance to do that through this new commission. For my part, I have certainly watched with concern the way that litigation seems to be becoming politics by another means, and the new, seemingly widespread view that what happens in the courtroom is sacrosanct, while what happens at the ballot box is not.

My despair at seeing laws I had worked on in government and had seen pass both Houses of Parliament struck down as incompatible with EU law was one of the reasons I left government in order to campaign to leave the EU, and I am particularly glad to be coming here at a time when Parliament is reasserting some of the sovereignty which I feared it might have lost. I hope it is more than youthful naivety which leads me to believe that there is a way of proceeding and embracing this commission which can reassert the importance of the rule of law and of parliamentary democracy and can restore the reputation of our courts and our Parliament in the eyes of the public they both serve. I look forward to the day when judges are neither traduced on the front pages of newspapers, nor have their brooches replicated and worn like political pin-badges.

However, these are debates for future occasions and I must be wary of wading too deeply for fear of sinking before I can swim, particularly in the company of so many accomplished swimmers. It is a privilege to be paddling alongside you.