Imprisonment for Public Protection

Lord Purvis of Tweed Excerpts

Tuesday 16th January 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the House will be aware that the Victims and Prisoners Bill reduces the qualifying licence period from 10 years to three, with the presumption of termination at that point, and automatic termination two years thereafter if there is no recall in the meantime. A recent report by His Majesty’s Inspectorate of Probation found that in none of the cases examined was the recall inappropriate but that, in some cases, further additional support in the community might have avoided the need for recall. That has led to a number of recommendations, all of which the Government have accepted.

[Lord Purvis of Tweed (LD)]

My Lords, when I served on the Justice Committee in the Scottish Parliament, I recall that Scotland chose a different path from England and Wales when the sentences were introduced by the Labour Government in 2005, and it was right that they were abolished in 2012. The UN rapporteur’s figures make very sobering reading, stating that 97% of those still imprisoned are now two years beyond the tariff and 46% are 10 years beyond the tariff, with rehabilitation having been designed as an integral part of the sentencing. What are the obstacles for the Government in implementing the recommendations of the Justice Committee in the Commons, endorsed by the UN rapporteur, for resentencing and rehabilitation now being put forward? What are the obstacles to this happening, so we can finally put to bed what has been a very sorry exercise?

[Lord Bellamy (Con)]

My Lords, I think I have explained this matter several times before to your Lordships but, in brief, the situation is this. We have 1,200 prisoners who have never been released. Almost all of those have come several times before the Parole Board, which each time has decided that they are not safe to release. Any resentencing exercise would inevitably either aim at or result in possibly a thousand persons being released who are not safe to release. The cohort includes many violent and sexual offenders, who are particularly difficult to manage in the community. The Government feel that they cannot take that risk and should not raise expectations but manage the situation by preparing the remaining prisoners for safe release.

Illegal Migration Bill

Lord Purvis of Tweed Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

Debate on whether Clause 5 should stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I propose that Clause 5, Schedule 1 and Clause 6 should not stand part of the Bill. I appreciate the support of the noble Baroness, Lady Chakrabarti, on this. Clause 5 relates to the removal of a person, as the Minister said on Monday, “swiftly” after they arrive in the UK or, as he put it, “shortly” after their 18th birthday. But Clause 5 actually says

“as soon as is reasonably practicable”.

Without the regulatory impact assessment, we in Parliament cannot judge what is a “reasonably practicable” period. What we do know—the Ministers know this all too well because they are lawyers—is that case law determines that

“as soon as is reasonably practicable”

cannot be considered as “as soon as possible” or “as soon as feasible”, although the Minister wanted us to think that it does. I guess the Bill would be a deterrent if one assumed that no lawyers for anyone would read it. Of course, there is no baseline estimate of the amount of accommodation and staffing or other logistical requirements that will be needed. We need central government estimates on costs, as we debated on Monday.

As we start today it is worth reflecting on the Minister’s comments in Committee on Monday as to who is included as a person—or “P”. As we found, “P” includes a young woman trafficked to the UK—potentially via multiple trafficking handlers, blackmailed and threatened, most commonly with threats of rape or family retribution—for criminal sexual or labour exploitation.

Home Office data shows the number of irregular arrivals of women since 2018 who received a positive referral to the national referral mechanism was 520. Those 520 women had been criminally exploited, and now they would be imprisoned and deported to a strange third country and, as the Minister confirmed to me on Monday, with no statutory duty for resettlement, readmission or support. Of those women, 73 were 17 and under. Last year, 13 girls came from countries to which we cannot return them. So those sexually exploited girls are now due to be detained and possibly sent to Rwanda. Last year, 13 girls were trafficked for exploitation in the UK, and the Government would now no longer allow their referral for protection. Well, not in my name—and nor should be in the name of any Member of this Parliament.

The Minister told us on Monday that they were part of the gaming of the system. He repeated to me on Monday the false assertion that

“the numbers of people claiming to have been modern slaves in this scenario indicates that there is extensive abuse”.

He also said that

“the simple reality, I am afraid, is that our modern slavery protections are being abused”.

These are misleading talking points from the Minister, and from Suella Braverman, which led, in December, to a formal complaint from Ed Humpherson, the director-general for regulation in the Office for Statistics Regulation, the formal watchdog. In response to those assertions, he investigated the data and wrote to the Home Office on 8 December. In his letter, he said:

“However, policy officials in the department could not point to any specific evidence for this when we enquired. What is more, the proportion of referrals deemed by the Home Office to be genuine cases of modern slavery in its ‘conclusive grounds decisions’ has risen year by year from 58 per cent in 2016 to 91 per cent in 2021, which does not suggest in itself that gaming is a growing problem”.


He continued:

“I would be grateful if you could raise this matter with communications and policy colleagues, encouraging them to ensure that claims in public statements are clear on whether they are sourced from published statistics or from other reliable evidence. This will avoid the risk of misleading people to believe that the statistics say something that they do not”.


So the Minister came to us in Committee in the British Parliament and misled us to believe that the statistics say something that they do not.

What makes that worse is that, in January, Home Office officials accepted the rebuke. Professor Jennifer Rubin, the Home Office Chief Scientific Adviser, replied to the regulator:

“I am glad that you highlighted this issue … The Deputy Director responsible for the publication of the NRM statistics has recently written to the policy and communications Deputy Directors to encourage them to ensure claims made in public statements are sourced from published statistics or other reliable evidence”.


So I hope that, on subsequent days in Committee and when we get to Report, the politicians in the Home Office will also do what the officials have been told to do: not seek to mislead us but use information based on the data.

The data the Minister cited on Monday was also partial. He told me:

“In 2022, there were around 17,000 referrals to the NRM—the highest annual number to date and a 33% increase on 2021”.—[Official Report, 5/6/23; cols. 1199-1203.]


That is correct, but what did he not say? He did not say that, according to the latest Home Office data that he cited, 49% of all referrals—half—are for exploitation in the UK. That has nothing to do with overseas or from small boats; 41% are for exploitation overseas. The biggest increase that contributed to his statistics was child exploitation, growing from 498 to 4,410 in the UK. I ask the Minister: are these abused children in the UK gaming the system?

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[Lord Bellamy (Con)]

My Lords, as the noble Baroness says, there might indeed be issues. Their legislation is a matter for them. The fact that they are members of the Commonwealth which upholds, or seeks to uphold, barest basic standards is a relevant background consideration, as the noble Lord pointed out.

For the reasons I have given, as best I can, the protections in the Bill are adequate to deal with the problems that have been raised. I respectfully say that Clauses 5 and 6 and Schedule 1 should stand part of the Bill.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for his thorough response, and to those who have spoken.

I looked at the reference to the Commonwealth when the Bill and the schedule were published. It is worth noting that 76% of Commonwealth countries are not considered by this Government to be safe, because 76% of the Commonwealth is not in the schedule. That is not us questioning it; that is the Government making their own decision.

The Minister, in his typically emollient way, suggested that we do not really understand these clauses and that if we did we should not be concerned because, as he put it, the legislation will have no practical operability. We are in a situation where the Home Office is doing the reverse of virtue signalling, which is to try to create, as my noble friend Lord Paddick indicated, the most punitive and threatening environment, of which the justice department will have to pick up the pieces. The Minister has been at pains to point out that there are many elements which would mean that there is no practical operability, but we are being asked to legislate for this, and on the basis of a lack of agreements.

On Monday, the Minister said to me:

“I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned”.—[Official Report, 5/7/23; col. 1229.]


As the noble Lord, Lord Kerr, and others indicated, the Government have not done so, but they are still asking us to legislate. The Minister said that, when we are negotiating some of these agreements in the future, there would be a “force of public opinion” on the agreements and debate. But on the only one that we have, with Rwanda, there was no debate or consultation. We were surprised by it. It was not a treaty that was ratified by Parliament; it was an MoU. The International Agreements Committee forced a debate on the MoU in this House, in which noble Lords took part, and the committee raised the concern expressed by the noble Lord, Lord Coaker, about refoulement. Unfortunately, this is the pattern of the Government.

On Monday, the Minister was not even able to confirm to me—he said he would write to me and I am grateful for that—that there are child facilities in the Rwanda agreement, because it was not designed for that in the first place. That addresses the point that the noble and learned Baroness, Lady Butler-Sloss, indicated with regards to those who are children. I referenced 73 children, up to 2022, who would be in the situation of being referred to protection and then on their 18th birthday would receive, under the Bill, a third-country notice, and they would have no idea what that country would be.

Illegal Migration Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[The Lord Bishop of Durham]

I apologise that I was unable to be present on day one of Committee and I arrived today rather later than I had planned, so was unable to speak earlier. However, I am grateful to my noble friend the right reverend Prelate the Bishop of Coventry for so doing.

In regard to this group, it is particularly Amendments 52A onwards for which I should like to express my support, although I fully support all that has been said around the individual countries and the issue around LGBTQ+ rights. However, there is real concern around naming a part of a country or territory as safe when much of the country might not be. So I fully support Amendment 52A on that basis.

In addition, I support Amendments 52E, 52F and 53, which are not just thinking about the situation in current countries but are looking to the future and how decisions are made in the longer term. It will be vital that we take seriously examining the situations in specific countries as and when they arise. We recognise that countries change and might become safe when they are currently unsafe. Equally, countries that are currently deemed safe may become unsafe. We need this kind of provision and I suggest that on Report we come back with a combination that pulls together all the safeties from those amendments.

[Lord Purvis of Tweed (LD)]

I wish to ask a question of the Minister in regard to Amendment 43, spoken to by the noble Lord, Lord Carlile, regarding Ghana. It relates to the points made my noble friend Lord Scriven.

The Home Office currently proposes that we move away from looking at countries on a case-by-case basis to determine which are safe. However, under the current Immigration Rules, the Government use the country policy and information note as the basis that officers will be able to use when they are considering a case.

The country policy and information note on Ghana regarding sexual orientation, gender, identity and expression, published in May 2022, states that of course each case will be considered on its own merits. That is obvious because that is what we are moving to. However, paragraph 2.4.13 states:

“In general, L, G and B persons are likely to be subject to treatment from the state that by its nature and frequency amounts to persecution”.


So, the Minister’s department for Ghana is saying that the state persecutes L, G and B people in general terms—but for men it is a safe country. So someone fleeing Uganda because of persecution because of their sexual orientation and arriving by an illegal route can now be deported to Ghana, where that very same person is now going to be vulnerable to, as the Government say, treatment from the state that by its nature and frequency amounts to persecution. I just want to ask the Minister why.

[Lord Paddick (LD)]

My Lords, we support all the amendments in this group, including the probing amendments tabled by my noble friend Lady Hamwee. It is quite clear from all sides of the Committee that just listing countries as being safe is not sufficient. The Government have already acknowledged that some countries are not safe to remove women to, for example. Therefore the principle is established that a country may be considered sort of generally safe, but not safe for particular individuals, whether because of their gender or sexual diversity. The noble Lord, Lord Carlile of Berriew, introduced amendments aimed at that. The amendment in the name of the noble Lord, Lord Alton, would ensure that victims of trafficking and modern slavery are not removed to a country where they would not be safe. As both my noble friends said, when you contrast the list of countries in Schedule 1 with the Government’s advice to travellers, for example, there is clear inconsistency between the two, or at least a case for the Government to answer in terms of using the countries in Schedule 1 as a blanket list rather than looking into the specific problems or dangers faced by people who belong to different social groups.

The other concern I have is, if people who arrive by means of what the Home Office calls irregular routes are not to have their asylum claims considered at all, how will the Government know whether the individual concerned is, for example, gay or a lesbian and therefore will be put in danger if they are removed to a country that clearly persecutes people from those groups? If there is going to be no consideration of the merits of an individual’s claim, how can the Government be certain that the person is going to be safe if they are removed to one of these countries?

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The test for adding countries to this list, particularly the words “in general”, is again not new: it is the test set out in Section 94(5) of the 2002 Act. Including a country in Schedule 1 simply requires the Secretary of State to be satisfied that it is considered generally safe. But, of course, if a person is to be removed to such a country, they would still have the opportunity to challenge their removal, on the grounds that they would face a real risk of serious and irreversible harm if removed to that country. The individual would not be removed if there was found to be such a risk. I will come to this point in a moment, particularly in relation to the questions from the noble Lord, Lord Coaker, about the position of the individual—they are perfectly fair. But the procedure for the claim of serious and irreparable harm protects the individual in those circumstances, so the Government do not consider that “in general” should come out of the Bill.

[Lord Purvis of Tweed (LD)]

I wish to probe a little more what the Minister said. I understand his points about certain parts of countries. As I understand it, the Government accept that, in certain parts of countries, the risk to the individual will be such that that person should not be returned or sent to them if they are part of what could otherwise be a safe country. What is our Government’s mechanism to secure a guarantee from that country’s Government that that person would not then be sent to that region?

[Lord Bellamy (Con)]

I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned. I agree that that may not be enough, and the situation may well be such that it is not appropriate to designate a part of the country. All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it. It would still be open to an individual, in a suspensive claim, to say, “I’m still at risk because I might be transferred to the part of the country where it would be too dangerous for me to be sent”. That would be part of the analysis that the tribunal seized of the case would have to make.

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[Lord Bellamy (Con)]

My Lords, the Government will of course consider that, as we try to consider everything that is said in this House, before Report. I simply reiterate that under Clause 5(3)(d), it still has to be

“a country or territory to which there is reason to believe P will be admitted”—

and that is probably not very likely to be satisfied in the particular countries we are talking about, such as Ghana, for example. Having responded to the noble Baroness, Lady Chakrabarti, the Government will of course consider the position.

[Lord Purvis of Tweed (LD)]

On that very point, what is the point of having Ghana in that schedule? There is no agreement with Ghana at all, so how do the Government know that Ghana would be unlikely to accept someone who is not admissible under the UK scheme? The UK will presumably not necessarily divulge that that person is gay.

[Lord Bellamy (Con)]

My Lords, I sought to explain earlier that Schedule 1 is an amalgam of all the existing schedules that exist. Ghana was already on a list of countries to which people could be sent, and the present practice is not to send people back to places where they are at serious risk. That practice will continue under this Act when you make a suspensive harm application. It is a historical situation, but it has to be dealt with on a case-by-case basis. As I said to the noble Baroness a moment ago, the Government will reflect on what has been said in this debate.

That brings me to deal specifically with the question of Rwanda and the fact that there are currently proceedings pending in relation to Rwanda, as the noble Lord, Lord Cashman, pointed out. So far, the High Court has upheld the position on Rwanda: we will see what the Court of Appeal judgment says. If the case goes further, it will be a matter for judicial decision and we will see how that works out, but we will not take Rwanda out at this stage, while the matter is still pending. I think that is also the answer, if I may say so, in relation to Amendments 43A and 49A on Hungary and Poland. These are ongoing proceedings: let us see what the outcome is and then it can be properly determined whether Poland and Hungary are countries that should remain on the list. That is not clear yet and it depends on the outcome of those pending proceedings.

I think that I am nearly through, except for the very important points raised by the noble Lord, Lord Alton, and others, as to whether we should beef up Clause 6(4)(b), which at the moment places certain requirements on the Secretary of State, in deciding on possible new countries and territories. The thrust of the amendment suggested by the noble Lord and supported by others is that effectively there should be a more detailed list of conventions and other international instruments to which the Government should have regard, with a specific obligation of consultation. The noble Baroness, Lady Chakrabarti, and others wanted in particular to enshrine the obligation to follow the decisions of domestic courts and the Human Rights Act.

The Government’s position on this—and of course, as with other things, we will reflect on it—is that these are effectively de facto covered in the existing Clause 6(4)(a) and (b). They provide that the Secretary of State must—it is a positive duty—

“have regard to all the circumstances of the country”

and

“must have regard to information from any appropriate source (including member States and international organisations)”.

That, in the Government’s view, necessarily requires the Secretary of State to have regard to case law, whether it is domestic or European; to have regard to international conventions and obligations; and to have regard to what international organisations say—and they are not exactly bashful when coming forward in this kind of area. The Secretary of State would be seriously at risk of being found to have acted irrationally or found not to have taken into account relevant considerations, if there was a major international organisation, a major convention or a major decision that had somehow been overlooked. So the combination of the normal duties of rationality and duty to take into account all relevant considerations, plus the actual wording of Clause 6(4), in the Government’s present view, covers the situation adequately.

National Security Bill

Lord Purvis of Tweed Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have added my name to many of the amendments in these groups. I declare an interest as a practising barrister in public law cases, occasionally in cases concerning natural security.

I entirely agree with the powerful speech that the Committee just heard from the noble Lord, Lord Marks. The award of damages for civil wrongdoing is one of the primary means by which the court remedies the wrongdoing and deters future wrongdoing. That the award of damages is central to our system of justice is confirmed by Clause 83(6), which recognises that the court may not decide to reduce damages to a claimant under the Human Rights Act. By seeking to allow a reduction in damages for non-human rights cases, these clauses would introduce a lesser standard of justice.

I am very unclear why what is unacceptable for a human rights case should be thought acceptable for other civil litigation. That is especially so when the concerns which the Government have about paying damages when they are found to be liable are most likely to arise in cases which do concern human rights violations: cases where the allegation is made—and for the purpose of this clause we must assume is proved to the satisfaction of the court—that the state has been complicit in acts of torture or murder, perhaps by undercover officers. Such grave acts can be and are pleaded as human rights violations.

I appreciate that the Government are keen to remove legal liability, including human rights liability, for claims based, for example, on UK military action abroad, but if liability were to be excluded for such alleged conduct, there would be no need for provisions on damages. Why deal with this by reference to the remedy rather than to liability?

These clauses are not even concerned with a case where the terrorist’s wrongdoing had a causal connection with the Crown’s conduct, which forms the basis of the Crown’s liability for its wrongdoing. Clause 83(4)(a) makes it clear that there is no need for such a causal connection. In any event, as the noble Lord, Lord Marks, correctly explained to the Committee, existing legal principles would apply in such circumstances. Therefore, I need to be persuaded by the Minister that there is any principled basis for these clauses.

[Lord Purvis of Tweed (LD)]

My Lords, the noble Lord, Lord Pannick, and my noble friend have comprehensively outlined why both these clauses are unnecessary in law but also go far beyond what is necessary and will be damaging in practice. I need not add very much other than to say that I have put my name to the amendments that my noble and learned friend Lord Wallace of Tankerness, who was unable to be with us today, has put down with regard to Clauses 82 to 86 stand part and, as my noble friend indicated, the other amendments that would seek to reduce the impact.

The clauses undermine considerably mechanisms for holding government to account, as the noble Lord, Lord Pannick, said, through civil claims. In addition to seeking a remedy, such claims have been positive in changing policy and practice. Therefore, the impact of the clauses, as Reprieve together with the other bodies referred to by my noble friend have indicated, could be to allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas.

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[Lord Bellamy (Con)]

I can say that the principle is certainly not for the judge to be asking himself, “Should I be protecting the Government or the security services from actions for damages?” I am not drafting the Bill, and I will further consider the matter, but I would imagine that it is something like how far the claimant brought the situation on himself. That would be an ex turpi causa or contributory negligence type of consideration. However, I do not want to pre-empt the discussion any further, standing on my feet thinking aloud, because I hear what is being said: we want further precision as to how the courts are to go about this.

[Lord Purvis of Tweed (LD)]

I think the Committee is now in a bit of a bind. The Minister stated a few moments ago that the Bill is now a clear code and explicit, but he is unwilling to tell the Committee even some basic elements of what guidance for a judge might exist. We do not know now how to proceed on the basis of this before Report, especially in the case of the specific question that I asked.

The Minister has also stated, exactly from the Government’s perspective, what the guidance for judges is. He talked at the opening of his remarks about demonstrating that

“the UK is not a soft touch for those involved in terrorist wrongdoing”.

It is very clear from what the Minister said at the Dispatch Box what the intent is. If the judge is not to take into consideration what the Minister stated, we are in a bit of difficulty.

My specific question here, and I hope the Minister can be specific in an answer now, relates to the concern that was raised that the national security factor in Clause 83(3) is broad, and that a foreign power can state that the claimant was involved in terrorist activities in a foreign country. If that is used by a party under the national security factor, my reading of that is that the judge must now take that into consideration. Surely that cannot be right.

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[Lord Bellamy (Con)]

My Lords, perhaps I can briefly explain, first, the Government’s view of the principle behind the provision, then come later to the detail of how it operates. In the Government’s view, looking at it as a matter of principle, through their actions individuals who commit acts of terrorism seek to threaten and undermine the very democratic institutions that are at the heart of our democracy in this country. It is right that persons who have committed acts of terrorism against democracy should be subject to a different approach when it comes to granting civil legal aid. The different approach is, in this case, that these provisions do not entirely deprive a “terrorist” of civil legal aid, because exceptional case funding remains available. That is granted in around 75% of the cases in which it is applied for, so we have a safety net there. The practical effect of what is proposed is that those with the relevant terrorist convictions follow a different route from others. In other words, the automaticity of legal aid is somewhat different if you have committed a terrorist offence.

Apart from the question of principle—and that is the principle that the Government are advancing—the questions that have arisen in this debate essentially focus on two issues, or sub-issues. First, have we drawn the definition of terrorist offence too widely, catching very minor incidents, such as the graffiti incident put forward by the noble Lord, Lord Ponsonby, or the relatively minor terrorist offences to which the noble Lord, Lord Anderson, drew attention? Secondly, are there particular circumstances, of which domestic abuse is one, where there should be some exception to be made, and where it is going too far to have this blanket restriction, and there are obvious cases where there could be a fully justified grant of legal aid on the normal procedure, rather than forcing someone to go for exceptional case funding? On both those points, I shall undertake to reflect and to look at the underlying impact of these provisions—but the general principle is as I have outlined.

[Lord Purvis of Tweed (LD)]

The Minister makes his case as to the general principle but, if that is so strong from the Government’s position, why does it relate only to England and Wales?

[Lord Bellamy (Con)]

The noble Lord, from a Scottish perspective, asks a relevant question. I shall have to take that under advisement and see, but I suspect that it is because there is a different legal regime in Scotland.

[Lord Purvis of Tweed (LD)]

I look forward to the Minister’s letter. This Bill applies to everywhere—but, of course, there is separate legal aid legislation in Scotland, which I scrutinised when I was on the Justice Committee in the Scottish Parliament. If the case is so strong for the whole United Kingdom, I am not sure why this is. If he is writing to me, could he add something on the concern about whether this provision is consistent with the commitments in the Good Friday agreement? Does this provision also apply to Northern Ireland, with regard to the permanent removal for all those who previously were beyond the restrictions before the convictions were made, as in the Bill?

[Lord Bellamy (Con)]

As far as I know, it is not the intention to apply this measure to Northern Ireland, but I shall write to the noble Lord to confirm the Government’s position.

Prisons Strategy

Lord Purvis of Tweed Excerpts

Thursday 16th December 2021 Lords Chamber

[Lord Purvis of Tweed (LD)]

The Minister indicated that the PCSC Bill included non-custodial sentences. Can he highlight what they are, and would he say that there will be a net increase or decrease in the number of people likely to go to prison as a result of the Government’s measures in that Bill?

[Lord Wolfson of Tredegar (Con)]

I was trying to say that on a number of occasions in debates on the PCSC Bill—I think perhaps the noble Lord was not participating in them—I have explained that under the sentencing guidelines, before somebody can be sent to custody the sentencer has to be satisfied that there is no proper alternative to custody. Even when that threshold is met, the sentencer then has to be satisfied that an immediate custodial sentence must be passed. We have had interesting debates on out-of-court disposals and alternatives to custody. I am happy to continue those conversations. As to the projections, I do not have those to hand but am happy to write to the noble Lord with them.

Assisted Dying Bill [HL]

Lord Purvis of Tweed Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, it is a privilege for me to follow the noble Baroness. I commend the noble Baroness, Lady Meacher, for her Bill and I too look forward to the maiden speech of the noble Baroness, Lady Davidson, with another Scottish perspective—because it is 17 years since my Bill in the Scottish Parliament to change the law in Scotland to allow a terminally ill patient greater power to determine the place, manner and precise time of their death.

During that time, much has changed, but some things have remained. As the noble Baroness said, 11 jurisdictions in the United States, New Zealand, five Australian states, Austria and Spain have changed their laws. Like the noble Baroness, Lady Hayman, I have visited Oregon. I did it then and I have studied the annual report on its legislation closely every year since. The well-managed, careful legislation, with suitable transparent oversight and mature discussion of its operation among the population, will have its 25th anniversary next year.

What has remained? In the absence of a clearly regulated, transparent legislative framework with judicial oversight here, we maintain the position that, if you have been given a prognosis that your life now has a limited time, you have the legal right to ask medical staff to deliberately withhold food and hydration until you starve to death. Patients might be pressurised, either by family members or by feeling that they are a burden, and they ask for medication, food or hydration to be halted and to be permanently sedated until they die. There is no legal test about mental capacity or whether financial pressure is being brought to bear on them in these last moments of their life.

Doctors may decide themselves, without consultation or recourse to legal approval, to provide lethal medication under the morally ambiguous doctrine of double effect, or place the person into continuous deep sedation. An extensive and comprehensive review in 2008 found the prevalence of patients dying under continuous deep sedation at 17% of all deaths—the highest in Europe.

I respectfully disagree with those who will argue today to continue a system that lacks transparency and accountability, with limited judicial oversight and scarce public reporting. Every Member of this House will have been touched by the care, the professionalism and, in many cases, the love of those who work in our care sector and NHS, including in my family right now in the current situation—but we cannot carry on with a system that gives the balance of rights to others at the end of their life, not the person themselves.

One of the most respected Members of the Scottish Parliament, a Deputy Presiding Officer and the MSP for Orkney, Liam McArthur, is carefully and consensually bringing forward a coalition that will likely now bring a majority for legislative change in Scotland. This will allow the people of the nation where I live the legal protections, rights and dignity of control which, for far too long over these 17 years, has been denied them. I support the Bill.

European Union Referendum Bill

Lord Purvis of Tweed Excerpts

Monday 14th December 2015 Lords Chamber

[Lord Faulks]

I do not suggest that it was unsuccessful, nor do I for a moment cast aspersions on the intelligence of 16 and 17 year-olds in Scotland or in England and Wales. Enthusiasm is of course to be welcomed at any age. Equally, there may be 15 year-olds who are very well informed and intelligent, whether they are in Scotland or in England and Wales. But, although Scotland took the view that it did about the voting age because of the devolution arrangements, most democratic societies have made the same judgment as this Government makes. In every EU member state but Austria, the voting age is 18 for national elections, and referendums where they take place. The 1975 referendum proceeded on that basis, as did the referendum on AV—and, as your Lordships may remember, the EU Act 2011would in the event of a transfer of power on competences have triggered a referendum according to the franchise that is used for general elections.

[Lord Purvis of Tweed (LD)]

Before the Minister moves on from the point that the noble Lord, Lord Foulkes, raised with regard to Scotland, he tries to give the impression that it was decided purely and solely by the devolved authority with no support. Can he remind the House whether the Prime Minister and the leader of the Conservative Party in Scotland supported the extension of the franchise to 16 and 17 year-olds in the referendum?

Queen’s Speech

Lord Purvis of Tweed Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, in many respects, the fear of who might govern one part of the United Kingdom was a decisive factor in who was elected in another in the general election. The playing off of one part of the UK against the other for electoral purposes will perhaps be a feature of the 2015 general election that will be written about by historians to come. Our electoral system acts as both an accelerator and a condenser in this. We have a majority UK Government elected by 37% of the people—in effect an English majority—and a bloc of Scottish MPs, 95% of whom were elected on just half of the votes. I congratulate the Conservative Party and the SNP, which used the first past the post system to devastating effect. However, if we have five years or more of governing where the political interest is to maintain this fear, and where there is a climate in which political advisers advise the leaderships of those two parties to maintain the bear at the door, north or south of the Tweed, we will have a permanently fractious union, to the disbenefit of every nation within it.

Before I turn to a legislative measure not mentioned in the gracious Speech and suggest a potential way forward for the long term, I will address a measure that is in the Government’s programme: the Scotland Bill. I support the Bill and commend the Secretary of State—a former fellow MSP when I served in the Scottish Parliament and also a former Liberal Democrat—and his predecessor, Alistair Carmichael, who both have honoured their commitments to turn the Smith commission proposals into legislation. Parliament will no doubt scrutinise the legislation, but it is both a fair representation and an impressive piece of work, given the timescale of the Smith commission and the duties on government to realise the proposals in legislation.

All the principal parties in Scotland agreed to the proposals. The SNP also agreed, but, in footwork more nimble than a sabre dance, it instantly condemned the Bill and said that it was not sufficient. Now the SNP has an opportunity to convert the Scotland Bill, through a whole suite of amendments from their 56 MPs in the Commons, into what I understand it still proposes to see, which is a measure for full fiscal autonomy. For the party to match its election rhetoric—and, indeed, the commitments from Nicola Sturgeon, the leader of the SNP, during the leaders’ debates in the general election—its MPs would have to bring forward detailed amendments to turn the Bill into a full Scottish fiscal autonomy Bill.

Alex Salmond said on election day that the “Scottish lion” had “roared” when people backed the SNP and its plans for full fiscal autonomy. This week, and following Second Reading in the Commons, is their opportunity to prepare a whole raft of amendments to bring this to fruition. When the measure comes to this part of Parliament, we will see the measures that they have brought forward. Of course, if they do not bring any forward, then we can draw our own conclusions about the robustness of the principle of full fiscal autonomy—the party’s flagship policy for over a decade.

The election changed politics, not only in Scotland but across the whole of the United Kingdom. Our institutions must adapt to this, too. We now need to design our future constitution. Our current framework, even with the Scotland Bill passed, is not sufficient to meet the future demands of the United Kingdom. Let this be the term of Parliament when we settle the questions of our unions—our union in these islands and within our nations, and the Union beyond our shores with our European neighbours. Let this be the term of Parliament when we settle for the people these long-term decisions and establish the best constitutional framework for the long-term governance of the United Kingdom.

To develop that, and in the absence of any proposal in the Government’s programme, I hope that Parliament will take a lead in supporting the Constitutional Convention Bill that I was fortunate enough to secure in the ballot for Private Members’ Bills. It received its First Reading today. The Bill states, at its core, that there should be, no later than 31 December 2016, a convention to,

“make recommendations on the constitution of the United Kingdom”,

and, in particular, to consider,

“the devolution of legislative and fiscal competence to and within Scotland, England, Wales and Northern Ireland … the devolution of legislative and fiscal competence to local authorities within the United Kingdom … reform of the electoral system”,

and, yes,

“reform of the House of Lords”.

In my view, it should consider how this institution can best be placed as an institution for all of the United Kingdom, binding together the nations and regions of the country.

I believe very strongly that a constitutional convention can also provide the opportunity for creating a narrative statement on what the United Kingdom is and what it offers its citizens—a charter of a new union, if you will, which can be a legacy of Her Majesty’s current reign but also allow that narrative to be here for future generations.

During the referendum on Scottish independence, some of the best arguments I heard—both for and against independence, but most profoundly for the union carrying on—were made by young people: in fact by the youngest voters. They had a coherent fluency of argument far beyond that of politicians.

Finally, in congratulating the noble Lord, Lord Dunlop, on his maiden speech and his introduction as Minister, I observed from the speech of the noble and learned Lord, Lord Falconer of Thoroton, that the noble Lord, Lord Dunlop, had studied under John P Mackintosh. John P Mackintosh has been a great inspiration for many in considering what the right balance of governance in the UK should be. In the Scottish Parliament building in Holyrood, carved on the granite threshold of the Donald Dewar Room, is this quote from John P Mackintosh:

“People in Scotland want a degree of government for themselves. It is not beyond the wit of man to devise the institutions to meet these demands”.

Surely it cannot be beyond the wit of men and women now to devise the UK institutions fit for the next generations, to inspire trust, enthusiasm and hope so that we are not governed by fear as the election, I am afraid, was won by fear. The best provision we can make for the young people of our country is to create a constitutional convention that is citizen-led, and to come up with the kinds of solutions that I believe can be long-standing for the UK.

Assisted Dying Bill [HL]

Lord Purvis of Tweed Excerpts

Friday 16th January 2015 Lords Chamber

[Baroness Grey-Thompson (CB)]

Thank you, my Lords. I have two very small amendments in this group, Amendments 161 and 167, which refer to the Suicide Act 1961 (Amendment) Act 2015. They merely serve to strengthen the declaration in relation to commensurate capacity.

On the main subject of this grouping, if I supported the Bill I would use the word dying because it suggests compassion, caring and a peaceful death. If suicide was associated with the Bill it would perhaps trigger some suicide prevention measures, which would increase the safety of the Bill and give comfort to a number of people. If the final action is to be taken by the individual, not by the doctor, surely that is suicide. I offer a challenge to your Lordships’ House on terminology. For years, disabled people were called not normal— they still are. They were called deformed, spastic, cripples and handicapped. There are also nasty words around race and culture. That is not a reason not to change and move on, or not to improve the language that we use. If we are honest about what the Bill is and if we are talking about autonomy, the word to use is suicide.

[Lord Purvis of Tweed (LD)]

My Lords, I am well aware that the Committee wishes to move on, so I appeal to its forbearance to allow me to make a couple of remarks. It is 10 years and two days since I lodged formally my proposal in the Scottish Parliament, a precursor to Margo MacDonald’s Bill. My proposal was the Right to Die for the Terminally Ill Bill, and I was well aware at that point of the criticisms of those who opposed it: that I was using emotionally charged language or euphemism, or softer language than it necessarily should be. The context in the proposal referred to physician-assisted suicide. Over the 10 years I have had an interest in this, having lodged a proposal in a legislature with a distinctly different background from the legislation on suicide in England and Wales, I have come to the conclusion that the terminology and definition in this Bill is absolutely correct.

Over the last 10 years, I have been struck that those people who would wish to use the protections under such a Bill—I believe that they are protections—are the least suicidal people you could find. They are people who love life and strive to live as long as they possibly can, but their life is being robbed from them because of a terminal illness. They come to the conclusion that they wish to have control in their remaining days, whereas control is being removed from them. I agree absolutely that language and terminology are important, and that truthfulness is vital. I am slightly upset when it is alleged that some of us who are on a different side in this debate are less truthful than others. Second Reading was a profoundly important moment, when we respected each side in the debate. Having used the different terms myself, over those 10 years I have come to these conclusions.

--- Later in debate ---

[Lord Cavendish of Furness (Con)]

Has the noble Lord not detected in his correspondence, as I have, that being mealy-mouthed about language has been rumbled by the public? In this Bill, they are discovering there is an element of sophistry in the Title.

[Lord Purvis of Tweed]

To some extent, that illustrates the point I was making. The Bill cannot be described as sophistry or as trying to secretly or behind the scenes change the law in a subtle or slightly insidious way. It is being presented to Parliament in the clearest of terms. All the issues were aired during the extensive Second Reading debate, in which every Member was able to take part, where even the definition in the Oxford English Dictionary was presented. All these issues have been aired; the question is about the right balance of terminology that the public, the medical profession and the legal profession understand and the legislation will hold. That is why I hold that this is the correct term for the Bill.

[Lord Tebbit]

I wonder why the noble Lord cannot accept the definition of suicide written in the Oxford English Dictionary. We have all accepted it for a very long time. Why does he now not accept it?

[Lord Purvis of Tweed]

This Bill is not redefining suicide; nor are we seeking to redefine suicide; nor is someone who comes down from Scotland every week saying that the legislation in the past in England and Wales was superior or inferior to the approach in Scotland, where suicide has never been criminalised. This is not a debate about that; it is a debate about those coming to the end of a terminal illness and their ability to control their final days. It is limited legislation. Opening it up to this wider aspect and all the associated aspects of wider suicide is not necessary. That is why, over the past 10 years, I have come to this clear conclusion.

[Lord Suri (Con)]

My Lords, we have spent enough time on terminology. As my noble friend Lord Tebbit said, the dictionary states that suicide is self-murder. I think it is more than that. It is a crime against the maker and nature, and we should abandon this terminology of suicide.

Criminal Justice and Courts Bill

Lord Purvis of Tweed Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, if I may, I will add a few words in support of the points made by the noble and learned Lord, Lord Mackay of Clashfern, and my noble friend Lord Blair, based on my experience as the senior judge in Scotland, the Lord Justice General. When I held that office, which I held for seven years, there was an upsurge, as happens from time to time, in the carrying of knives, particularly by young people. As the noble and learned Lord, Lord Mackay, has told us, there are cases where people who carry knives use them in an impulsive reaction to something said or done, resulting in horrific injuries. I spent four years as a prosecutor dealing with these cases.

Sitting as Lord Justice General, one of my responsibilities was to preside over the appeal court dealing with appeals against sentence in cases that had come up through the courts—sometimes through the sheriff court or sometimes through the High Court—where people had been sentenced for carrying knives. We thought that part of our duty in disposing of those appeals was to send out a message, because of the deterrent effect that we hoped that it would have. It was very much about deterrence; sometimes one added much more colourful wording to strengthen the deterrence. We might be quite lenient in the decision, but we would couch it in words that were designed to have an effect and draw the media’s attention, in the hope that they would report what we said and carry the message that the carrying of knives would be likely to lead to a custodial sentence.

Indeed, I remember going on television at the request of the police, who were concerned about the issue, using my authority as Lord Justice General to make that very point. I said that those who went out into the street carrying knives ran the risk that they might be prosecuted and that there was a risk that they might find themselves subjected to a custodial sentence. Of course, I was not cutting across the independence of the judiciary or the discretion that we all exercise; our concern was to get the message across. There is a force in doing that in statute, provided that it is appropriately worded.

I have looked at the wording of this particular clause, which contains fairly strong language, pointing in the direction of judicial discretion. As the noble Lord, Lord Marks, has said, I am concerned about bringing into consideration the first offence, which could be extremely important. But one must not underestimate the power of the deterrent effect coming through the message from a measure of this kind. I was not sure that, as judges sitting in the appeal court, by saying the things that we so often did, we were really getting the message across, which was why I was prepared to make a statement about it on television. I was not sure whether that in itself got the message across, either. But putting across the message and deterring people from getting involved in these things, with dreadful consequences for them and their victims, is immensely important. There is great force in the point made by the noble Lord, Lord Blair, to that effect.

[Lord Purvis of Tweed (LD)]

I intervene on the noble and learned Lord with a degree of trepidation. He rightly gives the experience of Scotland from a most senior position. While this was not at the same time, I served on the Justice Committee in the Scottish Parliament, which took a conscious decision to reject the course being taken with this amendment. Instead, we took the approach of putting more resources into the violence reduction unit in the former Strathclyde police force, and working with those charities for gangs. We found that to be the most effective way in which to communicate the message, rather than an approach of amending legislation, which we were informed by all of those experienced on the ground in those communities would not be the most effective way. I may agree with the noble and learned Lord, but we come to a different conclusion. Would he reflect on that before he concludes his remarks?

[Lord Hope of Craighead]

I am very grateful to the noble Lord for raising that point. Of course, one supports everything that could be done by people on the ground, and there are all sorts of things that could be done. I was trying to get across the fact that I was approached by the police to use my authority, as the senior judge in Scotland, to make the announcement that I did on television in the terms in which I made it.

There is a choice as to whether one trusts the energy and resources of those on the ground to carry the message across, coupled with such statements as the judiciary can make, or whether one has to resort to statute. The point that I am making is that deterrence is crucial in this field and that the more one can deter the carrying of knives and thereby the incidents that follow from the carrying of knives, the better.