Northern Ireland Protocol Bill

Lord Russell of Liverpool Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, believe it or not, we are only five weeks into His Majesty’s new Government. I suspect that, if others around the Chamber feel like me, it probably feels more like five months. However, in effect, the Government have been in office for only three weeks because of the unfortunate death of Her Majesty. One might have hoped that that would have given the Administration time to think through some of the things they were trying to do.

The Government have a range of huge political and economic challenges. At the beginning of the debate, I was amused in the wrong way when the noble Lord, Lord Forsyth, appealed for unity across the House. I thought that was a slight case of the pot calling the kettle black, given the current problems there appear to be within his own party.

In order to calm things down, the Government have decided to push forward with this Bill—to negotiate with, in effect, an unstable hand grenade in one hand and a pen in the other. That is not a particularly compelling negotiating position. So how do we get out of jail with this particular problem? I have four suggestions to make to your Lordships for consideration.

The first, quite simply, is to be honest, and to remember the huge diaspora that the Government are talking to. They are not talking only to the 81,326 members of the Conservative Party who voted for the new Prime Minister, nor the 113 Members of the other place who voted for her. They are talking to the entire UK. If one puts all the different components of the so-called “anti-growth alliance” together and does the arithmetic, it makes up a majority of those qualified to vote in the UK—so that is not a great place to start.

One is talking of course to all of Northern Ireland. I heard today of the concept of “wise unionists”, which presumably means that there are less wise or unwise unionists. I will not opine which is which—others have done that for me. Clearly, we are talking to the EU, but we are also talking to the United States. I remember vividly, in February 2019—which was the first time I heard the subject raised in an intelligent way in your Lordships’ House—the noble Lord, Lord Putnam, talked about the fact that he spent a very large part of his professional time in the United States and had many friends there, and was conscious of how strong the Irish-American vote and political lobby were. He advised the Government to remember that and be careful. Unfortunately, that does not seem to have happened.

The second point is to admit your own mistakes, quickly and with contrition. People will be more ready to forgive and forget if you are honest. Do not obfuscate or evade. I thought some of the comments by some of the wise—or unwise—unionists, effectively saying, “The protocol was nothing to do with us”, were perhaps a trifle disingenuous.

Thirdly, do not needlessly antagonise those you need to do business with. The Government have managed to piss off the EU, this House and, even more formidably, the Delegated Powers Committee. Can one learn from the past, I wonder? I googled some of the ruminations of the noble Lord, Lord Frost, on how we got here. In his Churchill lecture in Zurich last year he said:

“We never wanted this appalling bitterness and it is frustrating to Brexiteers that we have somehow attracted much of the blame for it.”


The bit I particularly liked in that sentence was the “somehow”. I was not impressed by him effectively saying that Parliament had subverted his ability to negotiate. What is Parliament for if not to decide what we should be negotiating for and how we should negotiate?

Fourthly and lastly, I am not a Northern Ireland expert; my first degree is in history. It is often said that in Ireland there is no present and there is no future; there is only the past, endlessly repeating itself. It is clear that the sociodemographics of Northern Ireland are changing. The recent census has demonstrated that. Sentiment about the future of Ireland is beginning to change quite rapidly. I say that having spoken to various people who live in Northern Ireland and are observing what is going on. I suspect that part of that sentiment is that a large part of the population, I suspect particularly the younger part, want to look towards a future that is not defined by a wish to extend or recreate the past. I am reminded of King Canute trying to stop the tide coming in.

It is not on my CV, but in my early years I was a gravedigger. If you are a gravedigger, you know that at a certain point, if you go too far, the walls will fall in. I appeal to His Majesty’s Government: please stop digging.

Stalking Protection Orders

Lord Russell of Liverpool Excerpts

Wednesday 16th March 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend for this point. Tackling violence against women and girls is a priority for the Government. I am sure that the House will agree that that should be the case. My noble friend is correct to say that there is a universal application of such measures. Scotland has its own distinctive regime, but it is one that deals with the same matter as SPOs in England and Wales.

[Lord Russell of Liverpool (CB)]

My Lords, could I gently take the Minister to task for the accuracy of some of the responses that he has been given in his brief? If training were in place for all first responders, I really do not think we would be seeing the alarming figures that were issued today for Wales, mentioned by the noble Baroness, Lady Royall. These showed that, out of 7,000 alleged stalking offences, only five SPOs were given. The cost of training an officer fully in the complexity of stalking is £75 per police officer. Will the Government—a combination of the Home Office and the NPCC—get on the backs of every chief constable in England and Wales and get something done? A letter from Rachel Maclean is not enough of itself.

[Lord Stewart of Dirleton (Con)]

First, I acknowledge the interest and hard work which the noble Lord has devoted to this topic. I fully accept that a single letter from the Safeguarding Minister sitting in the other place will not address these matters per se. The figures the noble Lord quotes to your Lordships are indeed worrying. However, I hope that the answers I have been able to give provide some comfort to the House—the noble Lord is shaking his head—as to the seriousness with which the Government take these matters.

Police, Crime, Sentencing and Courts Bill

Lord Russell of Liverpool Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I support both noble Baronesses’ amendments and urge the Minister to accept them with alacrity or, if that is not possible, to work with the noble Baronesses and parliamentary counsel to achieve the compelling intentions behind both amendments.

The last thing my noble friend Lady Kennedy of Cradley needs to do is apologise to the Committee for not being a lawyer because, if I may say so, her speech in support of her amendment combined every ounce of detailed legal reasoning with a humanity of which any lawyer would be proud. The anomaly to which she refers goes back to the 1956 Act, which sat around on the statute book before the 1997 Labour Government conducted a sex offences review. Clearly, this anomaly has not been corrected.

This particular offence is very grave, and it should never have had a time limit. In criminal law, we understand why certain lesser offences should be time-limited. We would not want every ordinary common assault or minor act of shoplifting not to be subject to a time limit, with this sword of Damocles potentially hanging over young people for the rest of their lives. We understand the public policy reasons to have time limits, but I suggest that to have them for such grave offences is contrary to the rule of law and fundamental human rights. The anomaly to which my noble friend Lady Kennedy of Cradley spoke so well clearly puts this jurisdiction in violation of Article 3 of the European Convention on Human Rights, and probably Article 14, on account of the various types of discrimination that are also involved—between not just boys and girls at the time, but children and adults who did not consent. We rightly assume that young children do not have the capacity to consent.

My noble friend Lady Kennedy is so right that the rule against retrospectivity is a presumption against changing the substance of a criminal offence. She put the point well: it is not there to prevent us from dealing with procedural obstacles that are unconscionable, as she is attempting here. So I see no problem at all with retrospectivity, because it would be contrary to any notion of human rights or justice for a defendant charged today, tomorrow or as soon as this is enacted, to argue that he thought he was in the clear because enough years had passed since this terrible crime. Even with substantive changes to criminal law, there have been exceptions to the presumption against retroactivity, as we saw in the higher courts some years ago when the position on marital rape was changed. In one case, the defendant said, “This is not fair; I raped my wife when I thought I was allowed to.” In any event, this is a procedural matter that is standing in the way of dealing with a terrible anomaly and human rights violation that will be ongoing unless we deal with it.

As to Amendment 292C in the name of the noble Baroness, Lady Newlove, and her supporters, common assault can be a minor enough offence in certain contexts, such as the two young people who have a fight. It is fine to leave a short time limit for that, but domestic abuse is a very particular context in which the victim, whoever in the family they are, may well still be in the abusive situation within those two years. Rather than create a separate specific offence of common assault domestically, why not deal with it in the fairly neat way that the noble Baroness, Lady Newlove, has?

If the Minister or his colleagues disagree with me, no doubt they, with the aid of parliamentary counsel, can come up with the right fix. However, I say to this Committee that both of these matters need to be dealt with not in future but with this vehicle. Frankly, there are lots of things in this very large Bill that I do not agree with, but the Bill would do something good if these two matters were tackled immediately.

[Lord Russell of Liverpool (CB)]

My Lords, I was very happy to put my name to the amendment in the name of the noble Baroness, Lady Newlove, but first I will refer briefly to Amendment 277. The first thing I have to say is that, as any inhabitant of the West Midlands will know, the noble Baroness who moved the amendment is the noble Baroness, Lady Kennedy of Cradley. It is pronounced “Cradely”, not “Cradley”—it is a bit like “Chumley” instead of “Cholmondeley”.

My second point is this: the point made by the noble Baroness about the amount of time that sometimes elapses before individuals feel able to come forward is a moot one. Yesterday evening, I watched a new programme with my daughter. It was a documentary on a well-publicised streaming platform that begins with the letter “N”; I will not advertise it here. The programme is called “Procession” and deals with the way in which five men, all of whom were the victims of predatory Catholic clergy 30 to 40 years ago, have finally started being able to talk about what happened to them and come to terms with it. When something like that happens to one at that age—in this particular instance, these young men were even younger than the people we are talking about, aged between 13 and 16—it does not take a brilliant imagination to work out the sort of trauma that it must instil in people and how difficult it can be even to recognise it oneself, let alone bring oneself to talk to others about it. The noble Baroness’s point was well put; it will be hard to disagree with her.

On Amendment 292C, first, I put on record my thanks—indeed, our thanks—to Yvette Cooper, who has been pursuing this forensically in another place. Her latest attempt was made today when she asked the Home Secretary directly what her view on this is and whether anything will happen. I am not clear why we are debating this amendment at all because, on 5 July, Victoria Atkins, now in the Ministry of Justice but the then Home Office Minister, said this in the House of Commons when talking specifically about this same amendment:

“We take this issue very seriously, and I can assure the House that we will return with a proposal at a later stage. I certainly do not rule out an amendment, if appropriate, in the Lords. This must be looked into”.—[Official Report, Commons, 5/7/21; col. 572.]


There it is on the record.

As the noble Baroness said, the Home Office seems to have developed a sort of hotline with certain reporters in the BBC, where certain potential developments are briefed to the BBC, which puts them out fairly prominently. There is then complete radio silence; there is no acknowledgement by the Government or Home Office in any way, shape or form that a briefing took place, so we are left in a slight quandary as to whether it did or not. Unlike some noble Lords, those of us on the Cross Benches have a high enough regard for the BBC that we tend to believe it when it comes out with something like this, so I find this practice of putting these things out into the public domain then saying nothing about them somewhat unhelpful. Frankly, it is a sort of legislator abuse since many of us are trying to do our best in talking on behalf of others and it is confusing when the Government apparently say one thing to the media and then stand at the Dispatch Box and say something similar to what they have been saying, sometimes for many years. My noble friend Lady Newlove put the case clearly.

Prisoners (Disclosure of Information About Victims) Bill

Lord Russell of Liverpool Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

[Baroness Bull]

My Lords, I am grateful to the many noble and noble and learned Lords who have spoken in support of my amendments, and I am particularly grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Barker, for adding their names to them. All noble Lords who spoke supported the aims of this Bill, but several shared concerns that the wording creates difficulties. As the noble and learned Lord, Lord Hope of Craighead, noted, the words “has information” and “has not disclosed” leave a gap in which the third scenario I outlined, where the prisoner is not able to disclose for reasons of mental disorder or mental capacity, is not covered. It does not provide the clarity that the board requires. I echo what I fear is the futile hope of the noble and learned Lord, Lord Hope of Craighead, that the Minister might be persuaded to reflect further following today’s debate and consider a government amendment at Third Reading.

The noble Baroness, Lady Barker, spoke with great experience and authority about the widespread lack of understanding of the Mental Capacity Act and its application within the criminal justice system. For reasons of time today, I did not repeat the observations I made in Committee about the extent to which issues of mental health might be a problem. The paucity of knowledge about the scale of the mental health challenge in our prison population, along with the potential for and the reasons behind mental health decline during incarceration, are there in Hansard. Like the noble Baroness, Lady Barker, I consider that they remain real concerns in the light of this report of poverty of understanding of the Mental Capacity Act.

I am grateful to the Minister for his response and, as I said earlier, for taking the time to discuss between Committee and today’s debate, and I am only sorry that he has felt unable to take on the concerns that we have collectively expressed. However, I appreciate his confirmation that any decision that does not take mental capacity into account could be subject to judicial review. I wonder whether he could clarify his response to my earlier question, along with that put by the noble and learned Lord, Lord Hope, as to where guidance on this could be found, how it would be applied and how it be monitored if it is not to be a statutory duty. Where is the guidance on application or consideration of mental capacity and mental impairment?

Finally, could the noble and learned Lord specifically address the question posed by the noble Baroness, Lady Barker, in Committee and again today, and in writing on 19 May by the noble Lord, Lord Bradley, as to what training in the Mental Capacity Act and its application is mandated for members of the Parole Board. I understand that they possess expertise in mental health matters, but that is not exactly the question that was asked.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

Does the Minister wish to reply? No?

[Baroness Bull]

In which case, with regret, I beg leave to withdraw the amendment.

Amendment 2 not moved.

[The Deputy Speaker]

We come now to the group beginning with Amendment 3. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or any other amendment in this group to a Division should make that clear in debate.

Amendment 3

Moved by

Crown Court (Recording and Broadcasting) Order 2020

Lord Russell of Liverpool Excerpts

Monday 8th June 2020 Lords Chamber

[Lord Wei (Con) [V]]

My Lords, I declare my interests as in the Lords register and thank my noble and learned friend Lord Keen for his eloquent introduction.

I welcome this move towards recording sentencing, whether online or for broadcast, especially in these times. It is wise, whether by accident or design, that this is being trialled quite extensively. It is true that we, as a people and as a nation, need to understand the law better, and the reasons decisions are made need to be explained more transparently. Although I have not worked in the judiciary, I had the experience of sitting on a jury in the Old Bailey just a few years ago, and I came away from it incredibly enlightened about and respectful of our system, which is one of the best, if not the best, in the world. I also came away with a much clearer understanding of the challenges faced by the police in particular. Apart from in court, they do not often get to explain their side of the story as regards the work they have to do to collect evidence and the hurdles that are sometimes there when it comes to prosecuting, based on lack of evidence or of the right kind of evidence; in that case it related to digital evidence.

Many citizens are expressing a sense of powerlessness, even in the last few days. That will only increase, and people may take matters into their own hands more often if they do not understand our system and cannot understand and see that justice has been done. A measure such as this one can help people to understand that there are processes for enabling the law to be put into action. By the way, delays in cases do not help. If you have to wait two years to see justice done, there may often be the temptation to take matters into your own hands.

I see this as all part of bringing into the internet age the legal system but also bringing about a better understanding of our ancient common law, which I admire greatly. It has been a great sadness to me to see in recent decades our system of common law, not just in the legal environment but in other, extra-legal areas, supplanted by what we might call a caricature of Roman law, whereby decisions are not always subject to jury, innocence is not always assumed before guilt and so on. Much of the technology world that I come from works on the principles of Roman law rather than common law. When the algorithm tells you that you cannot have a mortgage or cannot have a job, it does not always give you the reasons behind that decision and you are certainly always presumed guilty before innocent. If the computer says no, then it is generally a no. Educating people, including our tech entrepreneurs, about common law and natural justice is therefore important. I hope that this can be a way to ensure that our culture, our quangos and our code are defined in a way that is not Roman but based more on common law.

Like other speakers, I urge the Government to move faster and not just to use technology introduced in the past 20 or 30 years but to start to look ahead. I take note, for example, of the use of virtual reality. In Manchester, there is a collaboration between the University of Salford and the Manchester civil court to familiarise families and children with how the court process works using virtual reality so that it is not so scary for them when they enter court. I wonder whether this can be done by those who view sentencing, so that they can understand that a judge’s final decision is part of a long process that we should all be more familiar with than we are now.

I have a number of questions to ask and caveats to add. I worry about the risk of grandstanding by judges, especially in high-profile cases, and ask what guidance will be given to avoid that. If certain cases are not to be televised, how transparent will the decision be as to why a case was chosen to be televised or not? I am keen to understand whether we can learn in this House and the other House from the changes in the law that are required. Will judges be allowed to say, as they sometimes do, “The law needs to change in this area because it has tied my hands”? The link that used to be there when judges sat in the Lords previously needs to be re-established. Can it be created again through this process?

Finally, what measures are being taken to provide extra security to judges in case protesters leap into their place and incapacitate them to prevent them shutting down a broadcast? There may be a need to review this.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

I now call the next speaker on the list, the noble Baroness, Lady Jones of Moulsecoomb.

Brexit: Withdrawal Agreement and Political Declaration

Lord Russell of Liverpool Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I hope that the rest of the House found the previous half hour as life-affirming and helpful as I did. If so, if there is a mass exit to the bar, noble Lords have my complete endorsement and understanding.

I had the privilege of speaking on the second day of the last iteration of this debate, so I shall try to be brief. At the conclusion of my contribution, the speaker from the Government Back Benches who followed me suggested that my observations proved,

“he is not a politician. His view of politics is highly idealistic”.—[Official Report, 6/12/18; col. 1196.]

As a Cross-Bencher who first entered your Lordships’ House in 1982, I am inclined to take that as more of a compliment than a rebuke.

We are in uncharted waters. On the Cross Benches, we are privileged to have colleagues who possess an extraordinary array of talent, experience, intellect and knowledge of government, law and international affairs. Whether they are inclined towards leave, remain or any shade in between, they are more concerned and worried about our current state of uncertainty and national embarrassment than at any point in their collective memories.

Our dilemma was outlined in painful clarity by our ex-ambassador to the EU, Sir Ivan Rogers, in his speech at Liverpool University last month. I commend it to all of your Lordships with a taste for the kind of enervating entertainment offered by my noble friend Lord Lisvane to his maiden aunts. It is like a bucket of powerful paint stripper being applied to a canvas by a highly skilled diplomatic artist. What is depicted on the canvas is nearer to a Francis Bacon triptych than to “The Monarch of the Glen”. Sir Ivan depicts our fundamental misreading of how the EU operates and the weakness of our negotiating approach. He also inflicts richly deserved pain on so many of us:

“Both fervent leavers and fervent remainers as well as No 10 seem to me now to seek to delegitimise a priori every version of the world they don’t support”.


Where do we go from here, assuming, as seems very likely, that tomorrow’s vote in another place rejects the Prime Minister’s deal? Do we relinquish what vestiges of control we still possess, and accept the glorious defeat offered by departing without any deal at all? I have been doing my homework on the speakers in the two days of the debate last week; of the 19 Conservative Peers who spoke, 50% are in favour of no deal, and only 24% are in favour of the deal on offer. We live in strange times. Or do we—and I refer primarily to our elected representatives in the other place—wrest back control from the embarrassingly inept hands of Her Majesty’s Government and from their unworthy challenger, the equally inept and opaque Labour leadership?

Last Wednesday evening, my inner masochist turned on the television, and I found myself listening—much to my surprise—to a voice of sanity. It came from a fellow Cross-Bencher and an ex-Archbishop of Canterbury —my noble and right reverend friend Lord Williams of Oystermouth. Apart from being reminded that he possesses a set of eyebrows rivalled on the Cross Benches only by my noble friend Lord Lisvane, I was struck by the way he listened and thought carefully before any of his responses to a series of difficult questions about our current impasse. He gave no soundbites, no pre-rehearsed mantras, no entrenched and intractable points of view, just thoughtful, sensitively phrased and carefully considered responses that acknowledge the difficult decisions that we face.

I find myself agreeing with his reluctant but carefully thought through conclusion—that we should follow the advice of my noble friend Lord Armstrong of Ilminster last Thursday, and revoke and withdraw Article 50. We must acknowledge that swallowing our pride and admitting our failure to have defined, negotiated and then enacted a departure from the EU which is acceptable to a majority of our elected representatives requires us to return to the drawing board. No deal will not do. Extending Article 50 will not do. It will simply create yet another deadline, and allow us once again to kick the can temporarily down the road. No more.

Last month I reminded your Lordships of the surreal but uncomfortably pertinent Monty Python scene in which the characters debate their dislike of Rome—for which read the EU—while having to acknowledge a longer and longer list of the many benefits it has brought. Today I am reminded—with apologies to Scottish, Welsh and Irish noble Lords—of the agonised words of the character played by John Cleese in the film “A Fish Called Wanda”:

“Do you have any idea what it's like being English? Being so correct all the time, being so stifled by this dread of … doing the wrong thing … we're all terrified of embarrassment”.


We have embarrassed ourselves—and our many friends abroad—enough. Let us stop the clock, recover our mental faculties, nurse our emotional dissonance and seek a way forward that does not preclude any eventual outcome, and which prioritises understanding and acting quickly to remedy the deep economic and social divisions which the last two and a half years have laid bare. Let us cease and desist, and face up to our failures and responsibilities.

European Union (Withdrawal) Bill

Lord Russell of Liverpool Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I have my name to Amendments 37 and 70, and declare my interest as a trustee of the charity, Coram. I remind the Minister that it is the hereditary oik from the Cross Benches here again for the second time—good evening.

There appears to be broad agreement that it would be disappointing and unfortunate if we inadvertently managed to let children’s rights slip as a result of our anything-but-straightforward and frictionless departure from the EU. The United Kingdom has often played a prominent role in developing global human rights frameworks, and I sincerely hope that the Government intend that we should continue to do so in the hereafter.

Many of us have taken on board the distaste which many on the pro-leave side feel for the charter. Indeed, I have watched online a video of the Minister lamenting the United Kingdom being told to make prisoners have the vote and to allow some individuals involved in terrorism to be given greater human rights than he thought was entirely appropriate. The European Scrutiny Committee of another place in 2014 described the charter as creating a state of confusion.

[Baroness Ludford (LD)]

I think I heard the noble Lord refer to prisoners’ votes. That was the judgment of the Strasbourg court about the European Convention on Human Rights; it was nothing to do with the European Charter of Fundamental Rights. In any case, the way in which it has been demonised is wrong, because it said only, “Please have a scheme”, and not, “All prisoners must vote”.

[Lord Russell of Liverpool]

I thank the noble Baroness for that intervention. All I would say is that the discussion I heard was framed in the context of the European charter of human rights, probably incorrectly.

[Baroness Ludford]

Very incorrectly.

[Lord Russell of Liverpool]

That committee was chaired by Sir William Cash and included a certain Member for the 18th century, Mr Rees-Mogg, so I think that we can conclude that it was clearly completely impartial. We have got the message.

The question that we are posing to the Government, in response to a wide range of representations which many of us have had, is whether they will honour their commitment to defend the rights of children as we come through this process.

I mentioned at Second Reading that scrutinising and discussing this Bill in a non-partisan and apolitical way might be helpful, so I have a specific question for the Minister: does he have a twin brother or a doppelganger? Can he be same person who on 30 January was responsible for writing two articles? One of them appeared on the ConservativeHome website and said:

“From the beginning we have been clear that we need—and indeed want—to adopt a collaborative approach and listen to the views of Parliamentarians from all sides of the House. The necessity and sheer scope of this legislation means that thorough debate and examination is more important than ever. We took this approach in the House of Commons and we will continue to do so in the Lords … The House of Lords has a well-deserved reputation for its detailed and thorough scrutiny. This Bill should be no exception—it will benefit from the forensic examination the Lords can bring and we look forward to that razor-sharp review”.


On the same day, in the Sun newspaper, he wrote:

“We are seeing a co-ordinated push by the defeated elites; the Europhiles will use their majority in the Lords—a majority that rests heavily on quangocrats and busybodies, some of them in receipt of fat Brussels pensions”—


which possibly includes Members of the European Parliament—and:

“For the Lords to overturn a result supported by more British voters than anything else in history would be outrageous”.


He described some of your Lordships as scheming Peers who want an anti-democratic coup. So I have two more questions for the Minister; could he share with us what he had for breakfast the day he wrote those two reports, because I shall try to avoid eating the same? Secondly, did he ever consider a career in the Foreign Office?

Let us please forget the unending politics and focus on the children, whose voice and interests have hardly been top of mind as a rather unseemly procession of opinionated individuals compete for media airtime and attention. I recall noble Lords to the fact that I am speaking to Amendments 37 and 70. Amendment 37 aims to bring into domestic law the parts of the European Charter of Fundamental Rights into UK law that are necessary to protect children’s rights. I appreciate that we are not going to bring the charter overall into our law; however, it has some very important provisions: the child’s best interests must be a primary consideration in all actions, children’s views may be expressed and shall be taken into consideration, and children have a right to maintain a personal relationship with both their parents unless that is contrary to their interests. It contains other articles, as other noble Lords have mentioned, including on education and the prohibition of slave labour—the Minister will be aware that our Prime Minister has a particular interest in anything to do with child slavery.

Amendment 70 goes about achieving the same end in a different way. The UNCRC is viewed by most of us as the gold standard. The Government have stated that the source of the rights of the child set out in Article 24 of the European Charter of Fundamental Rights stem from the UNCRC, but as others have mentioned, it is not incorporated into domestic law. We share the concerns outlined by the Joint Committee on Human Rights in its recent report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. There are several examples of where the UNCRC and the charter have fundamentally helped where there are gaps in our own law. Among these are cross-border family breakdown; the right to be forgotten and data protection; and where 17 year-olds, who are still children under the law, are arrested and treated as if they are adults, which is against the law.

I believe that we must protect the hard-won protections of children and ensure that they are not inadvertently lost. I also support Amendments 68, 69 and 97, all of which are simply trying to probe the Government, to understand how they see the way forward. What all of us are saying is that, however we go forward, we must ensure that in no way, shape or form are the rights and protections of children in any way impaired.

[Lord Brown of Eaton-under-Heywood]

My Lords, I too strongly support the rights of children. Indeed, I support the rights of the elderly, in whom, like the noble Lord, Lord Foulkes, I must, alas, declare an interest. However, with the best will in the world, I cannot support any of these amendments. The first point I make is that we debated reasonably fully last week the desirability or otherwise of incorporating this charter into UK domestic law in this Bill. The previous group is said to have been “already debated” and I find it difficult to see the logic of now debating a host of questions which raise the same idea, only more narrowly focused on one or two specific, individual charter provisions. This debate has ranged far and wide. We have even been back to cross-border co-operation, which was the subject of an earlier group, and I am certainly not going back down that trail.

I shall turn to the specific rights addressed here. The suggestion that the rights of children could be a primary consideration in any decision affecting them is hardly radical. As the noble and learned Lord, Lord Mackay, noted earlier, the Children Act 1989 puts it rather higher than a primary consideration: it is the “paramount consideration”. Of course there are areas beyond the scope of the Children Act as such which are in play with regard to children, but for the life of me I cannot think of a single case in recent years affecting children—or, indeed, the elderly—which would have failed under the convention and the common law but would have succeeded only by reference to the charter; nor can I envisage such a case in the future. Somebody may be able to devise a scenario which would meet that but I have not been able to do so.

In any event, the Article 24 rights are regarded as retained general principles of EU law and therefore will continue to apply. The right to be heard on the part of children is not a contentious one. I took the opportunity of the regrettably short break we were given this evening to look at a particular decision—indeed, I think it was one of the last Supreme Court cases I was involved in, and my noble and learned friend Lord Hope will remember it because he presided over it. It was a group of extradition cases under the title of HH v Deputy Prosecutor of the Italian Republic. In the course of it the question of the children’s views was raised; it was an extradition case but the same principle applies across the wide field of children’s interests. The noble and learned Baroness, Lady Hale of Richmond, who gave the lead judgment in the case, concluded:

“I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be seriously damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly”.


I do not know of cases where children’s interests are lost because they are not permitted to express their views.