Indeterminate Sentences

Lord Ponsonby of Shulbrede Excerpts

Monday 29th April 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, the number of IPP prisoners are down to 1,312 as of 30 June 2023, from a maximum of 6,000. I hear the noble Lord’s views on the worthiness for release of those whom he has met, but it is not something which can be consigned to an individual; it is a matter for consideration by persons holding a wide range of specialisms and experience. I do not share the view that the Government should be ashamed of their response. The latest review by the inspectorate found that His Majesty’s Prison and Probation Service is taking “proportionate” and “necessary” decisions to recall offenders on an IPP licence for public protection.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, to be clear, the Labour Party does not support the resentencing of IPP prisoners. Our view is that it would put the resentencing judges in an impossible situation when there have been multiple recent reviews of those IPP prisoners. Nevertheless, the Government constantly tell us that there is a review of the sentencing plans for those IPP prisoners. Can the Minister tell us how many of the IPP prisoners have had their sentencing plans reviewed?

[Lord Stewart of Dirleton (Con)]

My Lords, I cannot provide the noble Lord with that information directly, but I will be able to do so in a very short space of time. I gratefully acknowledge the statement he gave on behalf of his party relating to the approach that has been proposed of resentencing such offenders. His views are at one with those of His Majesty’s Government.

Litigation Funding Agreements (Enforceability) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 29th April 2024 Grand Committee

[Lord Etherton (CB)]

My Lords, I just want to probe the Government to an extent on the involvement of the House once the Civil Justice Council has finished its review. It is an independent body. It is not itself a rule-making body; the rules are made by the rule committee. While I absolutely welcome the opportunity for the Civil Justice Council, with its expertise, to carry out its review, no changes to the rules will be made without a statutory instrument. My question for the Minister is: at what stage in the process will we have an opportunity of commenting on any recommendations made by the Civil Justice Council? That includes, for example, what my noble and learned friend Lord Thomas of Cwmgiedd has just said on whether a recommendation is made to deal with the question of regulation through amendment of the civil justice rules.

[Lord Ponsonby of Shulbrede (Lab)]

I will make the briefest of comments. I welcome the amendments put forward by the Minister. I very much take to heart the point made by the noble Lord, Lord Carlile, that the Bill would be pretty pointless unless there was an element of retrospectivity to it. I read the information that we were sent by the Bingham Centre, which was informative and interesting, and by the Bar Council. I absolutely understand the primary purpose behind this legislation.

The noble Baroness, Lady Bennett, commented on the legal balance in this Committee. I join her, as a non-lawyer; I cannot match her for gender, I am afraid. However, I can talk about the clients who are paying for this. I might have made the point at Second Reading that, by my understanding, the bulk of the people who take advantage of this type of funding would be at the sort of middle to large-sized company where I was chief executive. It is a way of cash management, in essence, because you do not know what litigation is on the horizon and you do not want to spend too much time on the litigation because that takes time away from running the business. So having these ongoing litigation funding arrangements is a way of managing risk. For me, that was the main purpose of occasionally entering into those agreements, rather than the litigation itself.

The other primary point worth repeating is that a lot competitors out there would like this business—Singapore, Australia, Dubai and elsewhere. I was very aware of that when I was running a business. I was regularly approached by people wanting to reach alternative ways of resolving any disputes that may arise.

Nevertheless, given those thoughts from a client’s perspective, I welcome this legislation. The English and Welsh model should be as up to date and competitive as possible. In that sense, I welcome the Bill and the Government’s amendments.

[Lord Stewart of Dirleton (Con)]

My Lords, I thank noble Lords and noble and learned Lords for all their contributions today. I will try to respond to the substance of the points that noble Lords have raised.

The Supreme Court judgment in PACCAR rendered many litigation funding agreements unenforceable. Uncertainty around litigation funding risks having a detrimental impact on the attractiveness of the England and Wales jurisdiction as a global hub for commercial litigation and arbitration, as well as on access to justice more broadly.

Through this Bill, we will restore the position that existed before the Supreme Court’s ruling in July 2023 so that litigation funding agreements affected by the judgment are enforceable. This will also ensure that claimants can get access to litigation funding in order to bring big and complex cases against bigger, better-resourced corporations, which they could not otherwise afford. In saying that, I reflect the principled concern raised by the noble Baroness, Lady Bennett of Manor Castle, in her brief comments and echoed by the noble Lord, Lord Ponsonby of Shulbrede. It is a leitmotif that ran through much of our discussions at Second Reading; we are all seized of the difficulties to which inequality of arms can give rise.

The remarks of the noble Lord, Lord Marks of Henley-on Thames, which went over much of the history of litigation funding as we now have it—or as we had it up to the point of PACCAR—gave us a useful reminder of some of the issues at stake. It is also of use for us to consider the background to the rise of litigation funding and to bear in mind the objections that law has traditionally had against third-party litigation of this sort—the traditional objections to the pacta de quota litis, which would allow someone else a controlling hand in the manner in which litigation was carried out, perhaps to the detriment of the person in whose interest that litigation was nominally being pursued.

Litigation Funding Agreements (Enforceability) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Monday 15th April 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble and learned Lord for introducing this Bill, which we support.

First, I will set the wider scene. Third-party litigation funding in the UK has experienced a huge growth since 2010, highlighting the need for comprehensive oversight and regulation. Globally, it is worth more than £13 billion a year and it is on course to grow by 9% per annum for the next five years, taking it up to £20 billion a year.

The UK’s 15 largest litigation funders saw their balance sheet assets soar tenfold to £2.2 billion in the decade to 2022, while the number of funders operating in the UK has grown fourfold to 70—of which only 16 are members of the self-regulating industry body, the Association of Litigation Funders. I noted that the noble Lord, Lord Meston, questioned what proportion of the business goes to the regulated and to the non-regulated funders.

The industry is highly profitable. The insurance company Swiss Re has estimated that the average internal rate of return on personal injury cases from 2019 to 2021 ranged from 20% to 35%. For mass tort lawsuits, profits ranged from 20% to 25%.

The Litigation Funding Agreements (Enforceability) Bill would confirm in legislation that litigation funding agreements in England and Wales are not damages-based agreements. Thus, LFAs would once again not be subject to regulation under the Courts and Legal Services Act 1990 and the Damages-Based Agreement Regulations 2013—a return to the position that existed before July 2023, when the Supreme Court ruled that LFAs could be DBAs if the funder’s remuneration was based on a percentage of the damages recovered.

Prior to the Supreme Court ruling, LFAs and the litigation funding industry were self-regulated. DBAs are a type of no-win, no-fee agreement between a client and their representative—usually their lawyer or claims management company. DBAs must adhere to the statutory and regulatory requirements set out in the Courts and Legal Services Act 1990 and the Damages-Based Agreements Regulations 2013.

In July 2023, the Supreme Court ruled in the PACCAR case, which we have heard so much about, that LFAs could constitute DBAs if the funder’s remuneration was based on a percentage of the damages recovered. The Government and the litigation funding industry both expressed concern that many LFAs would be deemed unenforceable because they did not comply with the legislative requirements for DBAs. The Government said that this uncertainty risked impacting access to justice and could damage the attractiveness of the England and Wales jurisdiction for commercial litigation and arbitration.

The organisation Forward Global argues that the PACCAR judgment enables parties of LFAs prior to July 2023 to challenge these agreements in court. It argues that Clause 4 would stop sub-postmasters, who signed their LFA in March 2016, and other victims of “excessive” LFAs seeking justice. We believe that the Government must ensure that third-party funders have an appropriate and not excessive reward for the risk they take. This is of importance because excessive reward is usually at the cost of the successful claimant who has suffered the wrong.

Although the Bill itself does not expressly include any safeguards, with future safeguards or regulation of the litigation funding sector to be delayed until after the conclusion of the review by the Civil Justice Council, the Government say that the review is expected to

“expressly consider the need for further regulation or safeguards”.—[Official Report, 11/3/24; col. 1888.]

The noble and learned Lord the Minister gave an update on the progress of the review and when it is likely to report, but I did not pick up whether its terms of reference are available and would be available to Members taking part in discussions on the Bill.

During the recent passage of the Digital Markets, Competition and Consumers Bill, which is soon to have ping-pong, an amendment was proposed to require the Government to conduct a review of the litigation funding market and its regulation. The Government did not accept the amendment but, to quote the noble Lord, Lord Offord, did concede that they were

“not blind to some of the challenges and opportunities to reform and improve the funding system”.—[Official Report, 11/3/24; col. 1888.]

I think the noble Lord, Lord Meston, made this point as well.

The Association of Litigation Funders argues that Alan Bates, the lead claimant against the Post Office for the Horizon scandal, said that the backing of the litigation funders helped him and his colleagues to secure justice, expose the truth and clear their names and reputations. However, it seems that, based on Forward Global’s briefing, the funders arguably made an excessive profit. I take the point made by the noble Lord, Lord Arbuthnot, that there was very real risk in embarking on that litigation and that he believes that they did indeed deserve their fees but, as the noble Baroness, Lady Jones, argued, the sub-postmasters themselves are left with £20,000 each—a fraction of the total award. I think it was the noble Lord, Lord Marks, who said that, on first reading, those numbers look offensive and unfair to the sub-postmasters.

Speaking frankly, the suggestion by some that, if the Bill passes, it means that LFAs will escape regulation altogether is unconvincing. They should be regulated in their own right, but not by regulations that would not have been expected, by either side, to apply when the agreements were being drafted and which are generally agreed, as we have heard from a number of noble Lords, to be a dog’s dinner in drafting terms. We recognise the gravity of retrospective legislation, but without it there is no way to preserve all the agreements in cases that have now been concluded. The briefings I have received say that there is no actual problem here, because all live agreements can be renegotiated. However, it is the older agreements that would stand to damage the industry most, hence the need for the Bill.

There is also the separate issue, which has not been mentioned today, of transparency regarding who is funding the litigation. We have all had briefings, including me, from various groups saying that litigation is being used as a vehicle for circumventing international sanctions. This might be a satellite issue but it is still a real one, and I look forward to the Government addressing it.

As the noble and learned Lord, Lord Thomas, said, litigation funding arrangements raise issues that are worldwide. The issues are very similar, whether in continental Europe, the United States, Singapore or Australia, and they are covered by the Vienna-based European Law Institute, as he said. While it is not directly relevant to this Bill, the findings of that institute, and the work of the noble and learned Lord and Dame Sara Cockerill, will be of great interest and relevance. I accept his point that there is likely to be further legislation in this area within a relatively short time.

Today, we are concerned with the Bill before us. We support it and we are very conscious that most industry figures do so too. There have been comments such as this is the “beginning of the end” of the issues caused by the PACCAR ruling, and the Bill is “a great starting point” for removing these uncertainties. It is in that spirit that we support the Bill.

In conclusion, I want to reflect on my experience in business. I think I am one of three noble Lords who have taken part in this debate who is not, and never has been, a lawyer. I remember when I got promoted from engineer to chief executive, I had to start dealing with all the legal issues that came across my desk. I agree with the noble Lord, Lord Marks: it is a bit of a jungle out there. I was very grateful that my business partner was a lawyer; he managed to save me from some of the problems of managing a business. I listened very carefully to my noble friend Lord Mendelsohn when he went through the various benefits of litigation funding. I took two points from his speech. First, poorer individuals and organisations are not particularly benefiting from this way of funding. That is the political point, which I wholeheartedly endorse. The second point he made rang absolutely true for me, as a former chief executive: it is a way of managing risk. The business I ran was relatively wealthy, but we had unpredictable cash flows. Such arrangements were very beneficial, because anything can happen when you are running a business. De-risking and managing legal costs over a period of time was a very useful technique when actively running a business.

Having said that, we of course support the Bill, and I look forward to the Minister’s response to the various points that were raised.

Prisons and Probation: Foreign National Offenders

Lord Ponsonby of Shulbrede Excerpts

Wednesday 13th March 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, prisoners will now be released not 18 days early, but up to 60 days early. No other Government have ever found themselves having to do that on such a scale. It is nearly three times the number of days on licence seen under any previous scheme. I have some questions for the Minister.

How many prisoners have been released early under the scheme to date? Which prisons are using the early release scheme? Which types of offenders are being released early under the scheme? Are domestic abusers and stalkers eligible for release under the scheme? Why has the scheme been expanded to early release of up to 60 days? Why has the scheme been activated indefinitely? Will the Minister commit to publishing all the relevant statistics about the early release scheme on the same basis that prison data is published—that is, on a weekly rather than an annual basis?

The Government tell us that they will free up more spaces in our prisons by cracking down on the number of foreign national offenders taking up space that we can ill afford to spare, when they have no right to be in this country. The Government reported that 4,000 criminals from prison and the community were deported in 2023. This number is significantly lower than the number they inherited in 2010 when the Labour Government left office; 5,383 foreign national offenders were deported back then.

Meanwhile, thousands of foreign national offenders are living in the community post release for several years without being removed. We welcome any improvement the Government intend to make on this poor record. But, if the public are to believe that any of these measures will make the necessary difference, the Secretary of State needs a more credible plan, such as a new returns and enforcement unit with up to 1,000 new staff— more than double the 400 new staff announced.

I turn to the extra spending the Government have announced for the Ministry of Justice in the Budget and in yesterday’s Statement. The Budget—I quote from the Red Book—committed

“£170 million to deliver a justice system fit for the modern era. This includes £55 million for the Family Courts … £100 million into prisons to support rehabilitative activities … and £15 million to introduce digital solutions … in the courts”.

In yesterday’s Statement they mentioned £53 million to extend the bail information service and £22 million for community accommodation. The Statement also mentioned the £155 million per year first mentioned in 2021, three years ago, for the Probation Service. What it did not mention was any extra money for probation, with all this extra work that the Probation Service is likely to inherit as more prisoners are released on licence.

My real question is on the overall budget for justice. The Red Book says in table 2.1 that the department expenditure limits for justice for 2022-23 were £9.3 billion; that is the actual outturn. In 2023-24 it is £10.5 billion, which is the planned outturn, and in 2024-25 it is £10 billion, which means there is £0.5 billion less money for the justice system in the next two-year period. This is a cut. The Government are keen to trumpet their spending increases, but where will these cuts come from in the justice system if the Government are to stick to their budget?

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

My Lords, this 11-page Statement contains a series of self-congratulatory assertions from the MoJ on everything from falling crime, longer sentences, new offences and deporting foreign national offenders to the response to the pandemic. The noble Lord, Lord Ponsonby, has pointed out the weaknesses in some of those assertions. But there is one thing in this Statement that is new. Buried on page 9 is the obscure passage:

“We will also extend the existing end-of-custody supervised licence measure to around 35 to 60 days. We will enable that to happen for a time-limited period and work with the police, prisons and probation leaders to make further adjustments as required”.


What a masterpiece of obfuscation.

On 16 October last, the Government announced their plan to allow up to 18 days’ early release, for a limited period, to meet what they called “acute and exceptional demand”. That period has now been extended indefinitely and, subject to further adjustment in future, to allow for early release between 35 and 60 days before scheduled release dates. This announcement betrays the panic in government that it has simply run out of prison spaces—and the crisis is going to get worse.

We now have a prison population of 88,220 on last Friday’s figures, against a maximum operational capacity of around 85,000 men and 3,300 women. The Daily Telegraph reports that there are just 238 male and 118 women’s places unfilled. Those figures exceed a far lower design capacity of 79,507, less than the MoJ’s certified normal accommodation of 80,000. Furthermore, the few unfilled places are dotted around the prison estate, so prisoners are shuffled from prison to prison, impacting on education and training, community contacts, family visits and relationships with staff and other prisoners. Can the Minister provide figures for the extra prison transfers caused by place shortages since last October’s Statement?

Then we have other harmful measures, such as the use of police cells for holding prisoners in custody. Will the Minister write to us with the statistics for the use of police cells for prisoners since the October Statement? Then there are the temporary prefab extra cells. Will he say what extra facilities for exercise, training, education and even eating have been provided for the increased numbers in the affected prisons? Then there are inevitably unexpected disasters, such as the discovery of radioactive gas at Dartmoor and the enforced closure of 184 cells between November and February.

The 10,000 new places by next year and 20,000 new places long term have been on the table for ages but, even if they all work out, they hardly scratch the surface. Increased sentences and increasing time served, loudly trumpeted in this Statement, serve only to increase the prison population, which is predicted to rise by March 2028 to a central estimate of 105,800, an increase of roughly 17,000. Will the Minister explain the maths?

Five Wells and Fosse Way, with a total capacity of 3,600, are already open and so are included in present capacity. Are they double-counted as part of the 10,000 due this year, mentioned in the Statement? Millsike in Yorkshire will open later this year and will have a capacity of 1,500. As to the remaining 10,000 places, not a brick has been laid and none is likely to be available until some time between 2027 and 2030. Gartree in Leicestershire, with a capacity of 1,700-odd, has outline planning permission but the detail has yet to be approved. Grendon in Buckinghamshire, with a capacity of 1,500-odd, has only just been approved by the Levelling Up Secretary. In Lancashire, the new prison in Chorley for 1,700 is the subject of a planning appeal which has not even commenced.

There was a consultation in 2021 about two possible new prisons at Wethersfield, near Braintree in Essex, but the MoJ says that no decision has yet been taken. Please will the Minister tell us more about the planning progress for these prisons? When is building predicted to commence? When might they open, and with how many places? Where is the budget? Have I left anything out? Again, will he please explain the maths and the figure of 20,000 for the promised new places?

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, in order to respond to the points made by the noble Lords, Lord Ponsonby of Shulbrede and Lord Marks of Henley-on-Thames, it is as well that the House reminds itself of the background against which the Government are acting: the unprecedented circumstances of the Covid pandemic. During that time, extraordinary pressure was placed on our justice system and the Government took certain difficult—but, as it turned out, wise—decisions in relation thereto.

Recognising the importance to our judicial system, to our system of justice, of jury trials, we did not suspend them. Recognising the importance of custody as one of the tools in our penal system, we did not introduce wholesale release of prisoners, as happened in other states, such as France, where 12,000 people were released from prison, I believe. Factor into that the action taken by members of the Bar in relation to their salaries, and we are in a situation where we have unprecedented strain on the system, which the Government are now seeking to work through.

That is the background to the steps that the Government are taking, bearing in mind at all times their principal desire to protect the public and to cut crime by taking dangerous criminals off the streets. That is the Government’s intention, and the noble Lord, Lord Marks of Henley-on-Thames, in reference to the Statement, quoted the figure of 20,000 additional prison places. The figures are indeed stark, as both noble Lords pointed out to the House. As a result of the factors that I have mentioned, both the remand population and the recall population in prisons in England and Wales have risen.

The Government’s response to this has been to push ahead with a programme amounting to the largest expansion of the prison estate since Victorian times, with 10,000 of the additional places to be delivered by the end of 2025—of which 5,900 have already been delivered. In addition—again, I recognise the questions from the noble Lord, Lord Marks, about facilities for prisoners—short-term measures have been put in place across the prison estate to expand capacity by the equivalent of around 2,000 places since September 2022. That has involved measures that would otherwise be considered undesirable, such as the doubling up of cells and the delay of non-urgent maintenance work, but the point is that these have been taken as temporary measures in relation to these unprecedented circumstances.

Noble Lords from both Front Benches referred to foreign national offenders. As the House has heard, last October, and again with a subsequent announcement this month, a series of measures has been announced to ease the pressure, including deporting more foreign national offenders and moving some lower-level offenders on to supervised licence up to 18 days before their automatic release date. In addition, our Sentencing Bill will help cut reoffending rates by creating a presumption that custodial sentences of less than 12 months will be suspended.

The work the Government will carry out includes tabling an amendment to the Criminal Justice Bill to extend conditional cautions to foreign national offenders with limited leave to remain; amending deportation policy so that foreign national offenders given suspended sentences of six months or more, up from the current 12 months, can be deported; expediting prisoner transfers with priority countries such as Albania, the country with the largest individual component within the 10,000-plus foreign national offenders currently in our prisons; concluding new transfer agreements with partner countries such as Italy; radically changing the way in which foreign national offenders’ cases are processed, creating a new task force and allocating 400 more caseworkers to prioritise these cases and streamline the process of removal.

I think it was the noble Lord, Lord Marks, once again, who referred to the end-of-custody supervised licence provisions. I have a number of observations to make on that. It is clear, in my submission, that further action is needed in the short term, and in order to do that, as the House has heard, there has been a programme to increase the number of days some lower-level offenders could be moved from prison and on to licensed conditions in the community before their automatic release date. As the House has heard, this will be increased to around 35 to 60 days. This will take place for a limited period, again recognising the current extraordinarily acute pressures on the system. We will work with the police, the prisons and probation leaders to made adjustments as they are needed.

I emphasise that this remains a temporary, targeted measure aimed at anyone convicted of serious crimes, such as crimes of a sexual nature. By “serious”, I do not necessarily confine myself to seriousness in terms of sentence; there is seriousness in terms of impact. I am looking also at people convicted of stalking offences and at domestic abuse cases, not just their seriousness to individual victims but to the community at large. These will not be affected, and those who break the rules imposed will face a return to jail.

We are conscious also of the impact our changes may have on probation, so on top of the extra £155 million a year being put into the Probation Service, from April we will reset probation so that practitioners prioritise early engagement, at the point at which offenders are most likely to breach their licence conditions, allowing front-line staff to maximise supervision of the most serious offenders. In many ways, this will simply instrumentalise a process that already happens quite naturally: if a person appears to be making good progress and satisfies those responsible for his management that that is the case, it is right and proper, I submit, that their attention should be focused on persons more in need of support, rather than having support spread out across the full period of somebody’s licence. That, I submit, will permit the maximisation of supervision and the most effective use of resources and time.

Reference was made to the use of police accommodation under a system known as Operation Safeguard, which is a matter of permitting police cells and other accommodation of that nature to be used in order to address acute capacity pressures caused by the barristers’ strike, building upon the pandemic. Across the country, 163 cells were available under Operation Safeguard, and His Majesty’s Prison and Probation Service has the authority to activate a further 200. The background to that is in relation to custody of persons being moved from location to location in order to attend court.

Other developments in hand include the rolling out of a national scheme to consider bail applications and to consider the balance as to whether bail or remand is the appropriate disposal in relation to somebody awaiting trial.

A question was posed as to the change in the point of release from 18 days up to between 35 and 60. As the House has heard, a similar scheme was operated in 2007. That scheme was different, and the early ECSL—end-of-custody supervised licence—scheme that is being introduced has a range of safeguards. The scheme operating between 2007 and 2010 released some people straight into the community without any supervision and led to the early release of some prisoners convicted of terror offences. Naturally, it is appropriate that fresh provisions look to such lessons as might be learned from previous schemes, and seek to build upon and correct them. I submit that the ECSL scheme that has been announced is different. Everyone is being moved on to supervised licence with strict conditions, including tags and curfews where necessary. The 2007 to 2010 scheme led to more than 80,000 prisoners being released; by contrast, the ECSL scheme is talking about a small proportion of people who are being moved on to supervised licence. Reflecting the concerns that I know are shared across the House about the impact on victims, complainers in crime who are perhaps affected or concerned by the possibility of release, if they have signed up to the victim contact scheme, they will be notified about an offender’s release where that takes place under the ECSL scheme.

In addition, I will say something about the resources being invested. As I think the noble Lord, Lord Marks, said, some 400 probation officers have applied—that exceeds the recruitment target the Government had in place over the years 2020-21 and 2022-23. I submit that that is a significant number. In addition, a sum of £53 million will fund more than 200 new bail information officers who will support the courts in reaching decisions as to bail and remand.

I think mention was made of the bail accommodation scheme, which provides temporary accommodation for individuals released from prison on home detention curfew, and provides a secure community-based alternative to remanding an individual in custody. I can speak from professional experience of the dreadful consequences that can follow from a person being released unexpectedly from custody into liberty where inadequate provisions are made for that person’s readmission into society by way of accommodation and support, or where no steps have been taken to prepare that individual, or to provide for him or her the physical needs of accommodation, food and money.

In those circumstances, each of the buildings in the bail estate houses up to four people, and residents are supported by visits to provide support and to address any wider issues. There is female-only accommodation, supported by CCTV, and funding is available that will be expanded across the remainder of the estate over the next six months.

The overall intention of the Government is to address this backlog that has grown up—this increasing strain on the resources of our criminal justice system—by additional cash, an increase in resources and, by that, an increase in the number of prison places to be made available over the next few years. As I say, the ambition is 10,000 new places—of which 5,900 are already in place—by 2025.

I was asked a number of very specific questions by both noble Lords who have opened for the Front Benches. I am very conscious of the fact that I have not provided detailed, specific, numerical answers to certain of the questions put to me, but officials are in the Box. If noble Lords are content, I will either correspond myself or, more likely, my noble and learned colleague Lord Bellamy, who is the Minister in the Ministry of Justice, will correspond with noble Lords, in an endeavour to give them answers which they will consider satisfactory to the questions they posed.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have two specific questions. The first point is that the early release scheme will put an additional burden on the Probation Service. The noble and learned Lord quoted the £155 million which was first raised in 2021. Can he confirm that there is no specific additional money for this additional work by the Probation Service as a result of yesterday’s Statement?

The second question is more wide-ranging. I wrapped up my contribution by pointing to the £0.5 billion cut in next year’s justice budget. As I said, the Government are keen to trumpet the extra spending. How are those two numbers reconciled, between the cut in the budget and the extra spending that the Government have just announced?

Safety of Rwanda (Asylum and Immigration) Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[The Lord Bishop of Chelmsford]

My Lords, I will rise just to answer the question that was put to me. First, I do not speak on behalf of the Church of England; I will be quite clear on that. We are not whipped on these Benches; we speak individually. There happens to be a great deal of agreement among us on these Benches on these issues, but we do not speak with one voice. The question I posed about whether any one of us would want this situation for our children was actually around age assessment. If we found our child or grandchild, or anyone we knew, in this situation, would we want them to be assessed in this way?

As to the question of whether I would ever put a child on a boat, I think that is the wrong question. The point is that, behind every one of these figures, there are individual stories of enormous amounts of trauma that most of us cannot even begin to contemplate. I do not want to make a judgment about what goes on before somebody gets on a boat. I do not know whether it is necessarily parents putting children on the boats; we do not even know what has become of the parents of the children who end up here. I would not want to make a judgment on that.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Baroness, Lady Lawlor, said that the Government were making tough decisions by their current policy to make a deterrent. I think that was the gist of the argument she used. As I have said in previous debates, I sit as a magistrate and occasionally I am put in the situation of having to make a decision on somebody’s age. It is usually a very unfortunate circumstance, but it is something I am sometimes called to do. In answer to the noble Baroness’s point, what we want to do on this side of the House is make accurate determinations so that the right decision is made, which defends our reputation as a country which observes domestic and international law and does the best for the children we find in our care. That is the purpose of these amendments, and I support my noble friend on Amendment 34.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I am grateful to all noble Lords for their contributions to this debate. Amendment 34, tabled by the noble Baroness, Lady Lister, would mean that when a decision is made to remove someone to Rwanda under the Illegal Migration Act 2023, Section 57 of that Act would not apply if there was a decision on age.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak briefly to perhaps the least contentious amendment in this group, Amendment 37, in the name of my noble friend Lord Coaker. It would simply ensure another level of scrutiny and security when deciding whether to comply with an interim measure by ensuring that the Minister must consult with the Attorney-General. It is a very modest and common-sense measure to help ensure that decisions are made with input from across government. The Government must understand that what they are proposing in the Bill distances us from our domestic and international obligations—obligations we expect others to follow, as we have heard many times in this short debate. This House voted on Monday to ensure that we respect domestic and international law, and it is in this spirit that we tabled Amendment 37.

The noble Lord, Lord Deben, admonished us, the Opposition, by saying that we did not want to kill the Bill, in effect, for electoral reasons—that is what he accused us of. It is not for electoral reasons; it is because we recognise the status of this House as an unelected Chamber relative to the House of Commons. We expect to be in government in a few months’ time and we expect the Conservative Party to observe the same conventions that we are observing now—and we are quite unapologetic about that.

[Lord Deben (Con)]

I point out that the noble Lord did not quote me correctly. I did not say that he should kill the Bill; I said that the Opposition were in a position to insist that the Government change the Bill so that it is in accordance with international law. That would not kill the Bill. I do not want to kill it; I want to improve it. The point that I make to the noble Lord is simply this: if he is saying that there is no situation in which the constitution of this country cannot be upheld by this House, he is saying something entirely novel. The fact is that this House has always seen itself as being the protector of the constitution—and what more important protection is there than to insist that the Government obey international law?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as I said, Amendment 37 puts the ball in the court of the Attorney-General; it is for her to make the decision and recommendation to the Government about the propriety of the interim measures. This is the most modest of the amendments in this group—and I do not know whether other noble Lords will be pressing their amendments.

[Lord Stewart of Dirleton (Con)]

My Lords, I am again grateful to all noble Lords who have participated in this debate, opened by the noble and learned Lord, Lord Hope of Craighead. He acknowledged that we had enjoyed a full debate on the topic in Committee, in which conflicting views on certain essential matters emerged.

The noble Lord, Lord Faulks, repeated the view he expressed earlier that the practice in relation to the Rule 39 interim indications of the European Court of Human Rights is suboptimal. But he also indicated that there are hopes that the procedure might shortly be improved.

Amendment 36 tabled by the noble and learned Lord, Lord Hope of Craighead, would allow a court or tribunal to have regard to a Rule 39 interim measure when considering whether to issue interim relief. But there is an equivalent domestic remedy in Clause 4, which means that there should be no need for the Strasbourg court to intervene. The decisions of the United Kingdom’s domestic courts to issue interim relief should be made only when they have reached their own conclusion about whether a person is at risk of “serious and irreversible harm”, and not when the European Court of Human Rights has indicated an interim measure.

“Serious and irreversible harm” is broadly the same test that the Strasbourg court applies; there is no reason why our domestic courts cannot be relied on to reach their own decision, rather than having regard to another court that may not be in possession of the most up to date information in the case. We have been clear that one of the primary purposes of the Bill is to reduce the number of legal challenges that seek to frustrate or delay relocations to Rwanda. We also need to create a deterrent and make it clear that those arriving via small boats will not be able to stay.

My noble friend Lord Jackson of Peterborough made a number of important points on judicial activism and the contrast between the rule of law and the rule of lawyers. Ultimately, if I may summarise his position, it comes down to an assertation of the accountability, of which we have spoken, introduced into our counsels by my noble friend Lord Howard of Lympne at an early stage. That is an important consideration for the House to bear in mind.

The noble Lord, Lord Alton of Liverpool, referenced Churchill. Again, if I may put words into my noble friend Lord Jackson of Peterborough’s mouth, I suppose that my noble friend’s point is that these times are not Churchill’s times. He spoke of the geopolitical challenge and the nature of the difficulties that illegal migration is causing to this country.

I note that the noble Baroness, Lady Jones of Moulsecoomb, is not in her place. None the less—

--- Later in debate ---

[Baroness Lawlor (Con)]

My Lords, I would like to echo the request to my noble and learned friend for greater transparency and clarity on this very important question of whether the Bill is compatible with the Windsor Framework requirements. This has come up on other occasions, including during a discussion on the CPTPP enabling Bill, where, in the explanation of the extent of the Act, it was stated that it extended to Northern Ireland but did not apply to it—yet that was not even on the face of the Bill.

I hope that, on this matter, where deterrence is one of the aims of the Bill, we do not leave the sort of loophole that will lead to us having case law after case law in the Belfast High Court, making a laughing stock of this measure.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Dodds, has once again asked the Government to explain the apparent contradiction between provisions in this Bill and Article 2 of the Windsor Framework. We believe that this is an important issue, and I can understand why the noble Lord believes that the Government did not fully respond to him or to the noble Lord, Lord Anderson, in Committee, especially given the concerns raised by the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and others on potential contradictions.

On Monday, this House strongly expressed its opinion that this Bill must be compliant with existing law. It is not unreasonable for the Minister now to fully respond to the questions of compliance. So we support the noble Lord in asking these questions, although we would not support the amendment if he were to press it to a vote.

I thought that the noble Lord, Lord Anderson, and my noble and learned friend Lord Falconer, made some important points about some of the amendments that have already been passed at this Report stage, which may reduce some of the anomalies that seem to be apparent in Northern Ireland. I would be interested to hear the Minister’s response to that point.

My noble friend Lord Dubs raised the issue of Guernsey. There is another amendment in the name of the noble and learned Lord, Lord Etherton, about Jersey. I think that it was the noble Lord, Lord Anderson, who said that the point really applies to all Crown dependencies. I would be interested to hear the noble and learned Lord’s response as to why the Crown dependencies were not consulted on provisions in this Bill.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to all noble Lords for their contributions to this debate. I will respond first to Amendment 44ZA, tabled by the noble Lord, Lord Dodds of Duncairn, which seeks to provide for the Bill’s effect in Northern Ireland, notwithstanding Section 7A of European Union (Withdrawal) Act.

The noble Lord makes his point exceptionally well, as he always does, in relation to the anxious question of the applicability of United Kingdom law to the United Kingdom. We have sought to be clear at the Dispatch Box that it is the unequivocal intention of the United Kingdom Government to apply the Bill in the same way across the United Kingdom. That is explicit in the Bill, which provides that immigration is a United Kingdom-wide matter.

I recognise that the tabling of this amendment once again reflects recent developments in the courts, of which we have heard from the noble and learned Lord, Lord Falconer of Thoroton, as well the noble Lord, Lord Dodds of Duncairn. As I stated to the noble Baroness, Lady Hoey, on Monday, when she raised these issues, the Government have always been consistent about their position on Article 2 of the Windsor Framework. I can advise that, following consideration of all aspects of the judgment of the court in the case of Dillon, His Majesty’s Government are applying for an appeal to the Northern Ireland Court of Appeal in relation to that matter. In any event, we remain quite clear that nothing in this Bill that provides for administrative arrangements concerning asylum and immigration policy engages Article 2.

For Article 2 to be engaged by this Bill, it would be necessary to demonstrate, first, that the alleged diminution relates to a right set out in the relevant chapter of the Belfast/Good Friday agreement on rights, safeguards and equality of opportunity; secondly, that the right was given effect in domestic law in Northern Ireland on or before 31 December 2020; and, thirdly, that it occurred as a result of the United Kingdom’s withdrawal from the European Union. These conditions are not all made out here and, indeed, fail at that first hurdle: they are not Belfast/Good Friday agreement rights. Accepting this amendment would undermine the Government’s position by implying that Article 2 and the rights in the Belfast agreement are far broader than is the case—that, I think, could not have been the intention of the noble Lord.

I am grateful to the noble Lord, Lord Dodds of Duncairn, for informal engagement with me and my colleague earlier this evening. As the noble Lord proposed, I would be delighted to meet him and any of his colleagues prior to Third Reading of the Bill. I have given, as I say, the assurance that an appeal has been sought in the appellate court in Belfast.

Briefly, in answer to the noble and learned Lord, Lord Falconer of Thoroton, the Government are not throwing any constitutional convention to the wind here. The Government’s position is an assertion throughout of constitutional orthodoxy.

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[Lord Scriven (LD)]

The very fact that extra terms of reference can be given by the co-chairs of the joint committee shows that it is not truly independent; that is the point I make.

I hope that the Minister will reflect on what I have just said, because it is clear that tried-and-tested experience, backed up with 30 civil servants, would show whether the promised obligations in Act and the treaty indeed were in place and had been implemented to a standard that gives people dignity, safety and future security, so that if this terrible Bill is enacted, no one is offshored to a place that clearly at present has not met the test set down by the Supreme Court and so cannot be considered a safe place.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 45 touches on an issue on which we have already voted on Report; namely, Amendment 7 in the name of the noble and learned Lord, Lord Hope, which would create a mechanism for ensuring that the safety of Rwanda as an ongoing condition of the scheme. We regard it as an excellent addition to the Bill and I hope our colleagues in the other place will give it serious consideration. The noble Viscount, Lord Hailsham, referred to it as a rolling sunset, but nevertheless the point remains.

Amendment 46 was introduced comprehensively by the noble Lord, Lord Scriven. He pointed to the 13 damning reports that were released on the same day that demonstrate the dangerous place our border security and immigration system is now in. I have a few questions for the Minister. Does he agree with David Neal that the protection of the border is neither effective nor efficient? When will the Minister announce the replacement for David Neal? Will there be somebody on an interim basis? What are the Government going to do to respond to the serious issues raised by the report? I look forward to his answers.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group is concerned with members of specific social groups. I welcome the points made by the noble and learned Lord, Lord Etherton: the Government have repeatedly put forward plans in legislation which appear to ignore the very real danger posed to members of certain social groups, including LGBT+ people, in many countries around the world including Rwanda. It again raises the issue of refoulement and the danger it poses; my noble friend Lord Coaker has already spoken about refoulement and has tabled amendments that would address this concern.

I also welcome the amendment tabled by my noble friend Lord Dubs and spoken to by my noble friend Lord Cashman who, alongside Humanists UK, has pointed out the dangers posed to the religious minorities or those who have no religion in Rwanda.

This group has been interesting. It has been a relatively short debate but has focused on the core issues raised by the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and my noble and learned friend Lord Falconer and my noble friend Lady Chakrabarti about the false dichotomy between individuals and groups in general. I think it was my noble and learned friend who said that the effect of the amendment in the name of the noble and learned Lord would be that the Minister is not tied to the Government’s stated view that Rwanda is a safe country; rather, it would be for the courts to decide that in individual cases where, for example, someone may be gay.

Surely involving our courts in the decision-making process goes to the very heart of the absurdity of the Government making a blanket decision that Rwanda is a safe country. It is doing no more than dipping our toe into the court system by asking it to review individuals who are particularly vulnerable. The amendment is not in any way driving a coach and horses through the legislation; it is trying to reflect concerns for vulnerable individuals through well-established practices within our courts. We support it.

[Lord Sharpe of Epsom (Con)]

My Lords, as we have previously set out, the purpose of the Bill is to stop the boats and end the perilous journeys being made across the channel as it is the busiest shipping lane in the world. These journeys are overwhelmingly made by young, fit men in search of better job opportunities, who are travelling from a safe country. Males represented 88% of small boat arrivals in the year ending September 2023. This is a similar proportion as each year from 2018 to 2021.

Since January 2018, 75% of small boat arrivals have been adult males aged 18 and over. We need a strong deterrent to stop illegal migration and measures to prevent removals being frustrated; we have therefore taken bold steps. However, to ensure that we are meeting our international obligations, Clause 4 provides that a Home Office decision-maker or a court or tribunal can consider a claim that Rwanda is unsafe based on compelling evidence relating specifically to a person’s individual circumstances.

As the Government have set out, since the partnership was announced, UK officials have worked closely with the Government of Rwanda to ensure that individuals relocated under the agreement will be safe and that their rights will be protected. The Government’s legal position, published on 11 December 2023, further sets out that the treaty, and the evidence pack, provide for compliance with the Government’s substantive obligations under international law. Therefore, no one will be removed to Rwanda if they face a real risk of serious and irreversible harm.

I turn to Amendments 38, 40, 43, 45 and 51 in the name of the noble and learned Lord, Lord Etherton, and Amendment 41 in the name of the noble Lord, Lord Dubs, as spoken to by the noble Lord, Lord Cashman. These proposed amendments to Clause 4 would undermine one of the principles that the Bill is seeking to address; namely, to limit the challenges that can be brought against the general safety of Rwanda, even with the signed treaty and updated evidence presented by the Government.

The legislation is clear and affords the appropriate safeguards to ensure that decision makers make a decision about the particular circumstances of each case. The Bill already allows decision-makers and the courts to consider certain claims that Rwanda is unsafe for an individual person due to their particular circumstances, despite the safeguards in the treaty, if there is compelling evidence to that effect.

I of course entirely understand the desire of the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Cashman, to get clarity and certainty on this issue. For people who identify as LGBT+, that consideration would include any assessment of any compelling evidence reviewed in line with the principles outlined in HJ (Iran)—as referenced by the noble Baroness, Lady Chakrabarti—that being LGBT+ would mean that Rwanda was not safe for them in their particular circumstances.

As in all cases under the provisions of the Bill, individuals will be given the opportunity to provide that compelling evidence that they would be at risk in their particular circumstances if they were relocated to Rwanda. That would include any alleged harm as a result of an individual’s gender or sexuality. As I say, any such claims would be assessed on a case-by-case basis, and in the case of LGBT+ claims, that would include any assessment in line with the principles outlined in HJ (Iran).

I make it clear that the Rwandan penal code does not punish homosexuality or relations between people of the same sex. The constitution of Rwanda includes a broad prohibition of discrimination and does not criminalise or discriminate against sexual orientation in law or policy. As regards the FCDO advice, which I was asked about, paragraphs 173 and 174 of the policy statement deal with this, stating:

“As experts on the bilateral relationship between the UK and Rwanda and its development over the past thirty years, FCDO officials based in the relevant geographic and thematic departments working closely with colleagues in the British High Commission in Kigali have liaised with the Home Office throughout the production of this Policy Statement … Information drawn from their institutional expertise as to the in-country situation in Rwanda, and Rwanda’s history of compliance with its international obligations is reflected as appropriate throughout”.


The noble Baroness, Lady Bennett of Manor Castle, raised concerns about the unequal treatment of women in Rwanda during Monday’s debate. The Rwanda country report refers to the National Commission for Human Rights, or NCHR, which is a constitutional commission provided for by the Rwandan constitution. The NCHR is made up of seven commissioners. Each of them has a specific area of focus, including the rights of women. There is a commissioner who is a focal person for or who is in charge of those rights.

The country report concludes that the general treatment of women is good. Women and children’s rights, among those the NCHR monitors, have seen an improvement since the creation of the NCHR. That is reflected in the laws and the constitution, which provides for specific groups’ rights; for example, women, children, and the disabled. The situation is the same for women as for those who are disabled. They are allowed to be elected, and at each administrative level at least 30% of representatives have to be women. In Parliament, more than 60% of representatives are women; the current Rwandan cabinet is 50% women, and five out of the seven commissioners in the NCHR are women.

Women’s rights are respected in every area. Although the NCHR receives some complaints about rights to property, Rwandan family law was amended to allow women to inherit from parents in 1999. The country information note also refers to the police response to victims of gender-based violence and the Gender Monitoring Office, which considers specific issues relating to gender-based violence. The National Women’s Council is represented from village level and at every level above and is a channel for sharing information on anything regarding gender-based violence. It is the responsibility of local leaders to ensure that there are no gender-based violence issues in their area of control. Police monitor what is going on; they can investigate and come up with a report or action.

Furthermore, the rule of law index, which ranks countries on indicators including equal treatment and the absence of discrimination, ranks Rwanda 26th out of 142 countries worldwide and first out of 34 countries in the region. That is a measure of whether individuals are free from discrimination—based on socioeconomic status, gender, ethnicity, religion, national origin, sexual orientation or gender identity—with respect to public services, employment, court proceedings and the justice system. I add that the 2022 US State Department human rights practices report on Rwanda noted:

“Women have the same legal status and are entitled to the same rights as men, including under family, labor, nationality, and inheritance laws. … The law requires equal pay for equal work and prohibits discrimination in hiring decisions”.


As I indicated at the start, this clause provides the foundations for the Bill as a whole; it is fundamental to the effective operation of the scheme, and the amendments put forward would serve only to weaken its effectiveness. I therefore invite the noble and learned Lord to withdraw his amendment.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Green. For my part, I agree with his assessment. However, it is one of the unfortunate features of the area that our more generous arrangements for handling unaccompanied asylum-seeking children are open to abuse and are abused. We needed to take steps to stop that. That is why, in the Illegal Migration Act, we put into force Sections 57 and 58. In the Nationality and Borders Act, authorisation was given for the utilisation of scientific methods of age assessment, all of which aim to prevent adults abusing our special arrangements for unaccompanied asylum-seeking children.

All these amendments, in particular Amendment 55, will not have the objective that the noble Baroness, Lady Lister of Burtersett, sought to persuade the Committee. She says in her Member’s explanatory statement that the amendment

“avoids a situation in which an unaccompanied child is erroneously relocated to the Republic of Rwanda”.

That is simply not the case. If one looks at the Illegal Migration Act, one will see that Section 57(1) makes it clear that it applies only if the

“relevant authority decides the age of a person … who meets the four conditions in section 2”—

ie, that they are an illegal entrant—and determines their age in accordance with Sections 50 and 51 of the Nationality and Borders Act, using scientific methods. The effect of the provision is to avoid the hazard that there will be repeated challenges which would be suspensive of removal. It does not take away someone’s opportunity to challenge completely the finding that they are, in fact, an adult. It simply says that they have to do that from Rwanda, and there is nothing wrong with that. For those reasons, I oppose these amendments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group has been about children. We spoke at length during the passage of the then Illegal Migration Bill about the danger posed to children by the changes in that legislation. To open, I have a couple of questions for the Government. Can the Government give an update on the number of children who have previously been identified as adults but have later been identified as children? How many of them would have been on the list to be moved to Rwanda had the scheme been working?

It is clear that the asylum system is failing, and failing vulnerable children. Beyond the risk of children being sent to Rwanda before their age has been identified, there have been ongoing reports about missing children, children exposed to assault, and children waiting potentially years for a decision on their protections claims. Given this, how can we trust the Government to make the correct decisions for children when it comes to Rwanda?

My noble friend Lady Lister of Burtersett said that it was cruel for children who come in under the age of 18 and live here for a number of years to be sent to Rwanda when they get to 18. She rightly said that this provides an incentive for children to disappear when they know that birth date is arriving. The noble Baroness, Lady Neuberger, talked about the age-old issue of age assessment. I know that very well because, as a youth magistrate, one of the first bits of training I did was on age assessment. Despite all the processes which are rightly in place, sometimes you are bounced into making those decisions, both as an adult magistrate and as a youth magistrate. I am very conscious of the difficulty in making those decisions. I think it was last week that somebody referred to Luke Littler, the darts player, and how he does not look like a 16 year-old boy.

All noble Lords have set out the case very well, and I will not go over the same points that they have raised. I will raise a different point, which I have raised in previous debates. This arises out of a trip with my noble friend Lord Coaker to RAF Manston about a year ago, facilitated by the noble Lord, Lord Murray. At that trip, it became evident to me from talking to the officials there that there is a reasonably large cohort of young people who identify as adults. I have debated this with the Minister—the noble Lord, Lord Sharpe—before, and he has written me a letter about it. They identify as adults because they want to work when they get here. They may well have been working in their own countries since they were about 14 years old. They identify as adults, they may look like adults, and they move into an economy—maybe an underground economy—because they want to work. It seems to me that by having the provisions within the Bill, they will have no incentive to identify as an adult. That will be taken away from them. They would prefer to identify as a youth. Have the Government made any assessment of the increase in people likely to identify as youths when they are coming irregularly into the country? I suspect it is not an insignificant figure and that it is actually quite a large figure.

Nevertheless, this is a very important group of amendments, and I look forward to hearing the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have participated in this debate, which, as we have heard, brings us on to the relocation of unaccompanied children and the subject of age assessments.

Amendment 54 tabled by the noble Baroness, Lady Lister, would reinstate the statutory duty to consult the independent family returns panel in circumstances where we would seek to remove families with children under 18, who fall within the remit of the Illegal Migration Act, to the Republic of Rwanda. This amendment would effectively undo Parliament’s previously agreed position in relation to the removal of families to Rwanda, taking them out of line with those being removed to any other destination, either a safe third country or their home country where it is safe to do so.

I reassure noble Lords that the welfare of a family will continue to be at the forefront of decisions to detain and remove them, regardless of the proposed destination, and we remain in open dialogue with the independent family returns panel about the role that it will have in the removal of families under the Illegal Migration Act.

The intended effect of Amendment 55 is not clear, as the Bill is an additional legislative provision that will apply to removals under the 2023 Act. However, I consider that the amendment is intended to mean that when a decision is made to remove someone under the 2023 Act to Rwanda, Section 57 of the 2023 Act will not apply if there is a decision on age.

I also thank the noble Lord, Lord Dubs, for Amendment 76, which inserts a new clause on age assessments. The intended effect of this amendment is that when a decision is made to relocate someone to Rwanda under the Illegal Migration Act 2023, Section 57 of that Act will not apply if there is an outstanding decision on age. It also seeks to prevent the removal of an age-disputed person from the UK to Rwanda if they are awaiting an age assessment decision under Sections 50 or 51 of the Nationality and Borders Act 2022 or have received a negative decision under these sections and are awaiting a final determination of either an appeal under Section 54 of the 2022 Act or a judicial review application.

It is important that the Government take steps to deter adults from claiming to be children, and to avoid lengthy legal challenges to age assessment decisions preventing the removal of those who have been assessed to be adults. Assessing age is inherently difficult, as all noble Lords have noted. However, it is crucial that we disincentivise adults from knowingly misrepresenting themselves as children. Receiving care and services reserved for children also incurs costs and reduces accessibility of these services for genuine children who need them.

Accordingly, Section 57(2) of the 2023 Act disapplies the yet to be commenced right of appeal for age assessments that was established in Section 54 of the Nationality and Borders Act 2022, for those who meet the four conditions in Section 2 of the 2023 Act. Instead, under Section 57(4) of the 2023 Act, those wishing to challenge a decision on age will be able to do so through judicial review, which will not suspend removal and can continue from outside the UK after they have been removed.

Section 57(5) of the 2023 Act also provides the basis on which a court can consider a decision relating to a person’s age in judicial review proceedings for those who meet the four conditions in Section 2 of the 2023 Act. It provides that a court can grant relief only on the basis that it was wrong in law and must not on the basis that it was wrong as a matter of fact, distinguishing from the position of the Supreme Court in the 2009 judgment in R (A) v Croydon London Borough Council, UKSC 8. The intention is to ensure that the court cannot make its own determination on age, which should properly be reserved for those qualified and trained to assess age, but instead consider a decision on age only on conventional judicial review principles.

In the scenario whereby the Home Office has doubts over a person’s age, they would not be subject to the duty to remove until such time as a final decision on age has been made by the relevant authority referred to in Section 57(6) of the 2023 Act. We consider that those provisions are entirely necessary to safeguard genuine children and guard against those who seek to game the system by purporting to be adults. The noble Lord, Lord Ponsonby, asked me whether we have looked into the opposite. The honest answer is that I do not know, but I will find out and come back to him if we make any assessment of that.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, the ancient court known as the Sanhedrin, at its full complement, sat with 71 judges and had a rule that the most junior judge would give judgment first. I understand the reason was that, if the senior judges had spoken and the junior judge disagreed, that would be arrogant; if they agreed, it would be impudent. I find myself speaking after the noble and learned Lords, Lord Hoffmann and Lord Etherton, who disagreed. Therefore, whichever side of this argument I take, it seems I am going to be guilty of both. I ask forgiveness from each of them.

Like the noble Lord, Lord Anderson, I will spoil any questions as to which way I will go by saying that I respectfully agree with the noble and learned Lord, Lord Hoffmann, and the reasons he gave for supporting Professor Ekins’ paper. It was interesting that, in opening the debate, the noble Lord, Lord Scriven, said that for about 20 years the jurisprudence of the European Court of Human Rights has been clear. That is true, but it begs the question: since the European Court of Human Rights has been there for rather longer than 20 years, why did the noble Lord limit his position to 20 years? The answer is that if he had said “for 23 years” the jurisprudence would have said something completely different.

What is remarkable in this area is that this is not a new question. As I said at Second Reading, the question whether the European Court of Human Rights should have the jurisdiction—and this is a question of jurisdiction—to issue interim injunctions or interim measures was specifically debated by the contracting parties back in 1949, and it was deliberately not put into the text in 1950. It was a deliberate omission, not an oversight. The states considered whether the court should have the power and, no doubt for reasons similar to that set out by the noble and learned Lord, Lord Hoffmann, decided that it should not. That caused no problem at all.

Year after year, the court operated perfectly well without this power. It ruled, in terms, that it did not have this power in 1991 and, a decade later, in 2001, it upheld that ruling. As I said at Second Reading, you then have a judicial volte face in 2005, and the judgment from which the noble Lord, Lord Anderson, quoted. It is an open question, and it is interesting to consider why there was this volte-face by the European Court of Human Rights. I suggested that it might have been “jurisprudential envy”, because the International Court of Justice held that it had the power to issue interim injunctions. But, of course, that is different, because the statute of the ICJ, particularly the French version, provides a basis in the foundational document of that court for it to have that jurisdictional power.

With respect, question of whether the court has a power to issue these interim measures rests on very slender foundations. How is it now said that the court has the power, and we are bound by it? The primary argument put this evening has been based on Article 32, which provides that the court has jurisdiction to decide on the operation of the convention. What is interesting about that argument is that it is not used by the court itself, which, so far as I am aware, has not based its jurisprudence on the fact that Article 32 gives it the right to say, “This is what our jurisdiction is, and this is what we are doing”. It is outside commentators who have tried to find a proper basis—because Article 34, which the court does rely on, is not one—for the court’s jurisdiction. It is rather like the archer who scores a bull’s-eye not by firing the arrow at the target, but by firing it and then drawing the target around it.

One comes to the conclusion that people would like the court to have the jurisdiction and then say, “Ah, well, there must be a basis for it—what about Article 32?” But it is not an argument that the court itself uses, and it is also a false argument. Article 32 is about disputes about the convention and its operation; they are to be resolved by the court. It is not a grant of unlimited jurisdiction to the court to defy the express terms of the convention, including Article 46.1, which says that states are bound only by final judgments and therefore, by implication, nothing else—and by the history of the convention, which, as I have set out, is contrary to the court having these powers.

Article 32 is not the “get out of jail” card. This is not a new point. A similar point came before the Supreme Court in the case of Pham in 2015—what would happen if the European Court of Justice exceeded its jurisdictional powers? The noble and learned Lord, Lord Mance, dealt with that issue in paragraph 90. I do not need to go through the answer, but it certainly was not, “Well, the European Court of Justice has a power to interpret the treaties, and if it says it has the power to do this, that or the other, necessarily it does”, which would be the analogue to the Article 32 argument.

With the greatest of respect, Article 32 simply will not do as a basis on which to found the jurisprudence of the court. Of course, there are other points to be made as to the process of the court, and those have already been set out by the noble Lord, Lord Faulks. For those reasons, the point underlying many of the amendments in this group—that the court has jurisdiction to issue these interim measures and they are binding in international law—is wrong. Therefore, these amendments ought to be resisted.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 62 in the name of my noble friend Lord Coaker would ensure that a Minister of the Crown making a decision on an interim injunction consults the Attorney-General. This would ensure that, before making a decision on compliance with any interim measures issued by the ECHR for the purpose of blocking a person’s removal to Rwanda, the relevant Minister consults the Attorney-General, creating an additional safeguard. The noble Lord, Lord Wolfson, introduced his speech by saying he was not going to be arrogant or impudent, so I will adopt the same approach in my speech, which will be brief. I am not going to go into the legal arguments—many eminent lawyers have done that—but I am going to go into the politics and address what seems to me to be the question that has been left hanging in the air.

Yesterday morning, I watched the television and Mr Michael Tomlinson, the Illegal Migration Minister, was on our screens and he was absolutely explicit: he said that the flights will take off as soon as the Bill becomes an Act and the treaty comes into force. He said they will be going pretty much immediately. There was no question of the niceties of Rule 39 and all the other things we have been talking about; the subject simply did not come up. That is the politics of it: when the Bill becomes an Act, the treaty comes into force and those flights will be taking off.

My noble and learned friend Lord Falconer went into how the decision on Rule 39 might be made. The question he, and the noble Lord, Lord Faulks, asked, was, would it be subject to judicial review? To me, that is the question hanging in the air, and I look forward to the Minister’s answer, because as far as I can see it will be for the Attorney-General to make that decision, on the recommendation of the Prime Minister, and she will be doing that as a law officer. Today’s Daily Telegraph said—I do not know how it knows this—that when Mr Tomlinson was Solicitor-General, he had written legal advice saying that it would be illegal to go against Rule 39. I know it is private advice; nevertheless, that was in today’s Daily Telegraph.

So, there are two issues. First, the Illegal Migration Minister was explicit about the flights taking off on the conclusion of proceedings on the Bill. Secondly, what is the status of judicial review of any Rule 39 decision?

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I am extremely grateful to the Committee for an exceptionally lively, informed and learned debate on this matter. The consideration of obligations to obtemper interim measures—interim indications from the European Court of Human Rights—seemed to gravitate around two poles. On one hand we had the noble Baroness, Lady Chakrabarti, the noble Lords, Lord Kerr of Kinlochard and Lord Hannay of Chiswick, the noble and learned Lord, Lord Etherton, and others. On the other hand, my noble friend Lord Howard of Lympne spoke powerfully, my noble friend Lord Jackson of Peterborough added his weight, and we heard supportive contributions from my noble friend Lord Wolfson of Tredegar and the noble and learned Lord, Lord Hoffmann, who spoke from the Cross Benches offering, if I may say so, a qualified view as to the obligation to obtemper any such interim measures.

The scheme of the Bill is to enact Clause 5 to put beyond doubt that the decision about whether to comply with an interim measure, in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Act, is in the hands of a Minister of the Crown. The requirement for a Minister of the Crown is to exercise the decision personally, which reflects the seriousness of the decision to be taken.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

The US State Department, which the Home Office cites, has said, and the Minister said on Monday, that those protections are not there yet. Although they are not there yet, some Members feel it is appropriate to detain Mary on arrival and relocate her to a country that does not operate under the minimum standards, because the migration Act and this Bill together mean that there is no protection for her and the many thousands who are in a similar situation. I do not think we should pass this measure. I hope very much—and he does listen—that the Government might find some means by which trafficking victims are even more victimised, because I do not wish to be party to victimising people arriving in this country whom we should be supporting, not deporting.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in this Bill we are discussing many of the same issues we discussed during the passage of the Illegal Migration Bill. Given the importance of the issues that were raised and the strength of the arguments, it is unfortunate that we are here, not even a year later, asking the Government to ensure protections for vulnerable people, children, those trafficked or sold into slavery and those who have proven themselves friends and allies of our country in Afghanistan in the face of great personal danger. It is disappointing that the Government did not listen on that previous occasion and I hope the Minister has listened to the arguments put forward by noble Lords in Committee today and will respond fully to those concerns.

As the noble Lord, Lord Randall, said, this has essentially been a debate about exceptions. The noble and learned Baroness, Lady Butler-Sloss, introduced her amendments about exceptions for those who may be victims under the Modern Slavery Act and, as she pointed out, there is a process to go through to make those sorts of assessments. She talked about, first, the referral, then the reasonable grounds submission and the final positive grounds submission. As the noble Lord, Lord Purvis, said, the whole purpose of that Act, an Act which the whole of Parliament is proud of, introduced in 2017, is to stop double victims, and that is one category of people who, we argue, through the amendments, should be exempt from the provisions of the Bill.

My noble friend Lord Browne, in his Amendment 75, gave particular focus to this when he gave those open-source examples of three Afghans who arrived irregularly here on UK shores and who face deportation to Rwanda. His amendments seek to make an exception for those cases as well. I have to say that I think my noble friend’s amendment should be very difficult for the Back Benches of the party opposite to resist. I thought the contribution from the noble and gallant Lord, Lord Stirrup, was particularly supportive when he said that the number one objective is to be seen as a trustworthy country.

I thank the noble Lord, Lord Horam, because he was the noble Lord who most clearly articulated the purpose of the Bill as drafted. He said that there needs to be a sharpness and narrowness of definition to achieve the ends and facilitate the removals of people to Rwanda. That was a very clear statement of what is indeed the object of the Bill, but we are talking here about exceptions, about people who may be victims of modern slavery or may have served our country in Afghanistan or elsewhere. The power of the debate is where the moral authority lies. I thought that the noble Lord, Lord Bellingham, made an interesting point. Of course, he is a loyal member of his own party, but he urged the Minister to look for alternative ways to achieve the same ends, and I will listen very carefully to what the Minister has to say to that challenge.

I conclude by saying that this has been an extraordinary debate. It goes to the very heart of what our country stands for. It is about integrity, about moral authority and about the rule of law and how our rule of law is viewed by other countries, which are probably watching our debate as we are having it right now. It is in that spirit that I will listen very carefully to the answer of the Minister.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords who have taken part in this very thoughtful debate. I reassure noble Lords that my noble and learned friend and I have paid very close attention to all the points that have been made.

As we have heard, these amendments relate to the position of potential and confirmed victims of modern slavery, and exempting people from being relocated to Rwanda, including those who have supported His Majesty’s Armed Forces or the UK Government overseas in certain circumstances.

Of course, we greatly value the contribution of those who have supported us and our Armed Forces overseas, and we have accepted our moral obligation. That is why there are legal routes for them to come to the UK. For example, all those who enlist and serve in His Majesty’s Armed Forces are exempt from immigration control until they are discharged from regular service. After that, non-UK HM Armed Forces personnel can apply for settlement under the Immigration Rules on discharge, when their exemption from immigration control ends. There are also provisions for family members of HM Armed Forces personnel to come to the UK legally. Anyone eligible for the Afghan relocations and assistance policy and Afghan citizens resettlement scheme should apply to come to the UK legally under those routes. As regards the specific case of British Council personnel, they are qualified under the third pathway of the ACRS and places are offered to them. To correct the noble Lord, Lord Scriven, these are not Home Office-run programmes, they are run by the MoD and the Foreign Office.

I have no doubt that, with regard to Amendment 75, the noble Lord, Lord Browne of Ladyton, would agree with me that we need to deter people from making dangerous and unnecessary journeys to the UK. A person who arrives in the UK illegally should not be able to make the UK their home and eventually settle here. Regardless of the contribution they have previously made, a person who chooses to come to the UK illegally, particularly if they have a safe and legal route available to them, should be liable for removal to a safe country. Having said that, the noble Lord, Lord Alton, and the noble and gallant Lord, Lord Stirrup, know that service- men are a subject of considerable personal importance to me. If they have any particular instances of personnel struggling to access one of those safe and legal routes, I ask them to raise them with me directly.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am afraid that the amendment still has no purpose. The point is, as I hope I demonstrated to your Lordships’ Committee, that the decision as to whether and how to act on a declaration of incompatibility is clearly set out in the Human Rights Act, and it rests with a Minister of the Crown. This Parliament does not have a role other than to consider, under the procedure for a remedial order, whether a decision is taken to lay one. That is the law as it stands and as it should be, so this amendment is unnecessary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments focuses on Clause 3 and demonstrates the threat to the domestic rule of law posed by the Bill. The Bill proposes ripping up not only our international obligations but our existing domestic legal structure, and it sets a dangerous precedent. It is clear that, when taken in combination with the serious limitations put on our own courts to decide what is and is not true, the Bill shows no respect for our domestic structures. I ask again: what are we getting in return? Do the Government really believe that delivering this scheme as it is currently proposed is worth it?

The noble Lord, Lord Scriven, moved the first amendment in this group, and he said, quite rightly, that the Bill usurps the role of the domestic courts and disapplies the Human Rights Act. He emphasised that the domestic courts are usurped within the Bill.

There has been a lot of discussion about Amendment 33 from the noble Lord, Lord Kirkhope, and there was some legal discussion just now between noble Lords about the best way that that amendment can prevent delay in considering making a remedial order. I will not comment further on that because it is above my pay grade as a magistrate rather than a lawyer who deals in this type of law.

More widely, there were very wide-ranging comments on the law, the theological principles underlying the Human Rights Act itself, and the principle of treating everybody equally, and an almost theological debate about whether this is a properly Conservative Bill. I am reluctant to trespass on theological or Conservative Party debates but, from the Opposition’s point of view, this group and the disapplication of a number of elements within the Human Rights Act go to the core of the objections to the Bill. I am sure we will come back to this in some form at a later stage. I look forward to the Minister’s response.

[Lord Stewart of Dirleton (Con)]

My Lords, as always, I am grateful to noble Lords who contributed to the debate on this group and added their wisdom to the Committee’s deliberations in relation thereto.

Clause 3 disapplies in particular circumstances certain provisions of the Human Rights Act 1998, specifically Sections 2, 3 and 6 to 9. I state and emphasise at the outset that we do not strip human rights from anybody by this means. It is

“a fundamental tenet of modern human rights that they are universal and indivisible”—

I happily associate myself with the views of the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Chelmsford in that regard—

“this is reflected in, amongst many other things, Article 2 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, and Articles 1 and 14 of the ECHR.

But it is legitimate to treat people differently in different circumstances: to take just two examples, a citizen may legitimately be treated differently, and have different legal rights, from a non-national; and a person in detention may have certain rights restricted when compared to a person at liberty. The ECHR, as interpreted by the case law of the ECtHR, fully recognises this principle. Rights are therefore universal, but what rights may mean for different people may legitimately differ depending on the circumstances, so long as any difference in treatment is justifiable within the framework of the relevant right. Therefore, everybody holds their rights without distinction on any ground; but the extent to which those rights may be limited, restricted, interfered with, or indeed vindicated, depends on each individual’s circumstances, and the legitimacy of the limitation, restriction, interference, etc.


To be clear, there is nothing in the Safety of Rwanda (Asylum and Immigration) Bill that deprives any person of any of their human rights: in accordance with Article 1 of the ECHR, we shall continue to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention. What we can legitimately do, and what we are doing, is to draw legal distinctions between those with a legitimate right to be in this country, and those who have come to this country illegally”.


I have just quoted ad longum—extensively—the submission of the Lord Chancellor to the Joint Committee on Human Rights last year.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Viscount. I listened carefully to what he said, including at Second Reading, and when he comes to make the case I will also listen carefully for that. If he will forgive me for saying so, we will be into the categories of plan C, D, E and F to try to make the Bill a bit better. I refer to the comments by the noble Lord, Lord Kerr, on the first group. These are all silk purse amendments, are they not? We are desperately trying to make something better that, in our hearts, we know cannot be better. We are trying to just take the rough edges off it slightly.

Our approach in this group is to revert the Bill to long-standing common practice for asylum laws that Ministers on those Benches have regularly said is the proper procedure, because it includes executive decision-making, parliamentary approval and then judicial review. That is what we are saying should be the case, because that is what, for years, Ministers have said is the case. We are seeking to restore that. Amendment 84 requires Ministers to report on these areas.

I wrote to the Foreign Secretary in December asking a whole series of questions regarding the treaty. The noble Lord, Lord Sharpe, gave me the courtesy of a substantive reply, and I am grateful for it. I asked specifically about when some of the mechanisms of the treaty would be in operation—for example, on the capacity for decision-making processes in Rwanda, for us to determine whether it would have the capacity and therefore be able to be safe. The noble Lord replied: “Some of the newer mechanisms will be finalised before operationalisation”. I want to know when. The Government are clearly working on it. They must have a working assumption of when they will be in place—so tell us. If the Government are saying that we are the determining body, tell us when those procedures will be in place. They cannot have it both ways and say that we are the determining body but they have the information—that does not cut it any more. If we are the determining body, we must have the information.

This is why I asked about when the judges will be in place. Under the treaty, judges who are not Rwandan nationals will have to be trained on Rwandan law, not UK law. The noble Lord, Lord Horam, who is not in his place, was completely wrong in the debate on the first group about this being similar to the Australian processes. The people who will be relocated will be processed under Rwandan law, not British law, so the judges will have to be trained on it. I asked when that will be complete, because we are obviously not going to relocate an individual where there will be a panel of judges to process them who are not sufficiently trained in Rwandan law. I am sure everybody will agree with that.

The noble Lord, Lord Sharpe, replied: “The proper procedures, facilities and support for relocated individuals, with regard to the judges’ training, will be in place before they are relocated to Rwanda”. The Prime Minister, who bet Piers Morgan that the flights will leave, obviously knows when the judges will be trained—so what is the working assumption of when they will be trained?

I am desperately trying not to make this a silk purse exercise. We are fully in an Alice in Wonderland situation here. In the debate on the earlier group, the Minister said that because things have changed, we should now look at the new country note. The new country policy and information note version 2—and version 2.1 in January, which he was referring to—supersedes the summer 2022 country note. The Minister is saying that the old note should not be taken into consideration because there is a new note—and, if we want to refer to the UNHCR’s up-to-date position we should, as we heard him say, look at annexe 2 of that report. Not only have I read the country policy notes front to end, I also clicked on the annexe 2 links—anybody can do it now on their smartphone. A box comes up with a note that the publication was withdrawn on 11 December 2023. The publication the Minister referred to, which was withdrawn, was from May 2022, which the Supreme Court used as its evidence for the UNHCR.

If we are to be the decision-making body, how on earth are we going to be making decisions when the Government do not tell us even the basic information of when they—not us—think Rwanda will be a safe country?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as the noble Lord, Lord German, said, there is a suite of amendments in this group that, in many ways, cover the same ground as the first group. It is clear from this short debate, as well as the first, that this debate—approaching the Bill by ensuring that the terms of the treaty are being properly adhered to; essentially, we are debating the mechanism for how best to do this—will dominate the whole Committee stage. I hope colleagues can work together to return the best possible solution on this issue.

In the same way that the Opposition do not wish to delay the Bill’s passage, we do not want to create barriers for the scheme to start. Our focus should be on how we monitor and judge the safety of Rwanda, who monitors it, and what should happen if Rwanda is judged not to be a safe country for those being removed to it.

The noble Lord, Lord German, introducing Amendments 4 and 17, said there should no commencement of the Act until Rwanda is deemed a safe country. A number of noble Lords spoke at length on proposed new subsection (1A)(c) in Amendment 84, which are the 10 issues raised by the committee of this House about how that might be achieved. The noble Lord looked at how that might be done, how many of those elements are in place, which are operational and—perhaps more fundamentally—whether Rwanda has the practical ability to fulfil the undertakings in a more long-term way. That is really the point that the noble Lord, Lord Inglewood, made in his brief contribution to this group.

My noble and learned friend Lord Falconer speculated that the Secretary of State could, after making a decision, be open to judicial review. The noble Lord, Lord Howard, said that the Supreme Court did not use the principles of judicial review when it made its decision, but decided the case on first principles. Both my noble and learned friend and the noble Lord are well above my grade in legal matters, but it seems to me that this is another example of possible compromise as we move forward—as there were possible areas of compromise discussed in the debate on the first group.

The noble Lord, Lord Purvis of Tweed, gave his customarily extremely articulate speech on the various provisions in proposed new subsection (1A)(c) in Amendment 84. He spoke of making a silk purse out of a sow’s ear and went through various ways in which that might be achieved—although he made his reluctance to do so very clear. The noble Viscount, Lord Hailsham, spoke about his Amendments 81 and 82, on the rolling sunsets, as he described them, which we will get to on a subsequent group.

So, really, this whole group is trying to make sure that the Government are properly held to account. As I said in my introduction, our focus will be on how to monitor and judge the safety of Rwanda, who monitors it, and what Parliament’s role is in that, rather than putting up a barrier against the Bill itself.

Civil Procedure (Amendment No. 4) Rules 2023

Lord Ponsonby of Shulbrede Excerpts

Tuesday 6th February 2024 Grand Committee

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

My Lords, in what is plainly a crowded Committee, I shall be brief. The Minister referred to STPIMs. I shall also refer to Part 2 notices, in acknowledgement of the fact that the Explanatory Note uses that phrase, while the Explanatory Memorandum uses the STPIMs formula. I say at the outset that we are delighted to hear that Jonathan Hall KC has been appointed the reviewer of STPIMs. His work in this field is well known and widely admired, and it is very welcome that he is going to take on this burden as well.

The Minister explained the nature of STPIMs and of the conditions on which they are to be implemented, and that this SI in effect amends Part 80 of the CPR to enable rules concerning hearings relating to TPIMs to be applied with all necessary changes to Part 2 notices concerning STPIMs. It is plainly sensible that that should be done. I have read Part 80 and there is no material need for any distinction between the procedures applicable for hearings relating to TPIMs and the new hearings relating to Part 2 notices.

That said, I have a couple of questions. Broadly speaking, this statutory instrument plainly follows the need for a statutory instrument to introduce a procedure for the new orders. This is the right procedure, so we welcome the statutory instrument to that extent. Of course, in a volatile world and volatile conditions relating to terrorism, I cannot at this stage ask the Minister to predict how often STPIMs will be necessary because we cannot tell, but my questions concern the use of the urgent procedure under Schedule 8 to the National Security Act, which provides that the Secretary of State may impose STPIMs in urgent cases without court permission. The Minister referred to court permission being required in the general case. We hope that that is the general case and that it is only cases of real urgency that will give rise to the imposition of these measures.

The schedule gives power for the Secretary of State to impose the measures without permission if he or she thinks that the urgency of the case so requires. In such a case, the Secretary of State must then refer the case to the court for confirmation of the measures after they have been imposed, first for a directions hearing within seven days and then for substantive review. I therefore ask the Minister to indicate, in so far as he is able to do so, how often he would expect the urgent cases procedure to be used as a proportion of the overall number of STPIMs. That is important in the context of orders that have no warning, effectively, whereas when the application for permission is made the person against whom they are going to be made knows something about them.

I also seek an answer from the Minister, as far as he is able to give it, as to how long he would expect confirmation proceedings to take after the directions hearing. We recognise that closed proceedings will very often be involved and that the use of a special advocate, which is envisaged in the Act and the statutory instrument, carries with it its own complications in respect of the late appointment of a special advocate to represent the interests—in so far as he does so—of the person against whom the measures are to be taken. If the Minister can give us some indication of how he would expect a Secretary of State to approach those issues, and how he would expect a court to respond, it would be helpful. Apart from that, we welcome the instrument.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble and learned Lord, Lord Stewart of Dirleton, for introducing this SI. We support it, as we did in the House of Commons. I open by noting the sad irony that the Minister who introduced it in the other place has signalled he will stand down from Parliament in due course. I know he is currently still a Minister, but he is standing down for fears for his personal safety.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, when the Minister introduced this SI, he explained the nature of the STPIMs and how they relate to TPIMs and said it is natural that this SI amends the Civil Procedure Rules 1998. Although I have plenty of briefing on the background of the reason for this, I want to reiterate the two questions posed by the noble Lord, Lord Marks, and add a third question of my own.

First, the noble Lord asked how often STPIMs will be necessary. The Minister can probably not put a number on that, but perhaps he will be able to give a figure for the proportion of the overall STPIMs in which the urgent procedure will be necessary and the procedure will be followed without court permission. I am not quite sure whether court permission is provided retrospectively if the urgent procedure is used. Secondly, the noble Lord asked how long after a court direction the proceedings will take place. His questions were really about the management of the proceedings.

I was just recollecting that these proceedings are difficult to explain and understand, although they have been in place for probably 10 years or more and are dealing with some of the most intractable problems that we see in our country, terrorism threats. What should and must underpin this is that there is a fair trial underlying all these proceedings, however complex and difficult they are—that we as the British state, if I can put it like that, and the Government, believe that the underlying process is fair. It is almost a philosophical question for the Minister. How do the Government review the processes, assess what the judges do, and listen to the judges who oversee those processes, to have confidence that the underlying process is fair, even though it is not disclosed to the people who are subject to it?

As I said in my introduction, it casts a slight pall over the whole thing that Mike Freer has announced his intention to resign from Parliament, or not to stand again in due course. We in the Opposition support these measures, but there are fundamental questions which we must continue to ask ourselves. I look forward to the Minister’s response.

[Lord Stewart of Dirleton (Con)]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, pointed out, it is scarcely a packed Committee; none the less, the contributions from the noble Lord and from the noble Lord, Lord Ponsonby of Shulbrede, have been of a thoughtful character and, indeed, merit the label “philosophical”, which the noble Lord, Lord Ponsonby, attached to his closing submission.

I am grateful for those contributions and for the broad indication that, while neither of the noble Lords who spoke began to approach the idea of giving His Majesty’s Government a blank cheque in relation to these provisions, and they demanded further scrutiny, none the less, they are broadly speaking in support of the measures in this statutory instrument.

I shall address the questions that were put to me. The noble Lord, Lord Marks of Henley-on-Thames, asked—and the noble Lord, Lord Ponsonby of Shulbrede, echoed the question—about the frequency with which the urgent procedure will be used. I start from the proposition that, as the Committee is aware and has heard, these provisions relating to STPIMs substantially reflect the provisions relating to TPIMs. To a certain extent we can extrapolate from the use of TPIMs some predictions, although the noble Lord, Lord Marks, accepts that it would be a very difficult task to estimate how many. But we can extrapolate from the TPIM experience something which I hope will address the Committee’s concerns. That allows me to say that we expect that the urgent procedure will be used very rarely. It has not been used in relation to TPIMs since the TPIM Act came into force in 2011. As I say, we would expect that the experience in relation to STPIMs would broadly reflect that.

Identifying a case as being urgent would not be a matter of seeking to avoid scrutiny. An urgent case will be one in which notice is sought; that notice must contain justification for the approach and the matter must be referred immediately to the court, which must consider the case within seven days of the notice being imposed. The court will apply exactly the same principles as if it had been consulted in advance and will have the power to quash the notice, or any of the measures specified in it.

I can advise the Committee that, while the experience of TPIMs has been that none has been overturned altogether, the courts none the less have acted anxiously and vigilantly to observe the manner in which they are to be applied and have adjusted, from time to time, certain of the terms of orders that have been made. The individual has a right to a full, automatic High Court review of the case, and a directions hearing in relation to that must take place within seven days of the court confirming the imposition of measures.

Reference to directions hearings allows me to digress for a moment to offer the Committee an assurance that, while that procedure and this statutory instrument apply to the Civil Procedure Rules applicable to England and Wales, equivalent measures will none the less be introduced by our equivalents in the devolved Administrations in Northern Ireland and Scotland. Communication has been made with the relevant rules bodies in those jurisdictions.

Further questions posed by noble Lords related to the matter of volume. Again, if we can be permitted extrapolation from the TPIM experience, it is anticipated that the volume of these measures will be low and used only as a last resort. As I said on an earlier point, the courts will be able to review all closed material and will have the opportunity to challenge the imposition of an order before it is made. Furthermore, through the automatic review, the court could quash the order or remove specific measures. As I said, it has done so in the context of TPIMs.

In terms of transparency, there will be independent oversight by the independent reviewer of state threat legislation, Jonathan Hall KC, who has accepted that post. He will publish an annual report on the use of these powers.

The noble Lord, Lord Ponsonby of Shulbrede, posed the philosophical question, given the necessary degree of confidentiality that will attach to these measures, about how the Government can be satisfied that the measures are working properly, and that the provisions intended to protect the interests of individuals made subject to these measures, notwithstanding the fact that they will not be placed before those persons or their instructed legal representatives, are effective. I can rely with confidence on the integrity of the legal profession in the jurisdictions of this kingdom and the independence that it has always shown, on the independence of our judiciary, and on the special advocate procedure itself, which confers these responsibilities on counsel. They are usually members of the Bar, but this would potentially be open to those with extended rights of audience as solicitor advocates, with the training and vetting they would receive before appointment.

I can take from the submissions heard by the Committee that it is persuaded that the statutory instrument is necessary for the effective operation of STPIMs, slotting in, as it does, into the Civil Procedure Rules and simply adding provisions referring to the governing Act.