Operation Soteria

Lord Stewart of Dirleton Excerpts

Thursday 13th July 2023 Lords Chamber

[Baroness Chakrabarti]

To ask His Majesty’s Government what assessment they have made of (1) the effectiveness of Operation Soteria, and (2) last year’s statistics on the (a) attrition rates, and (b) waiting times, in cases of reported rape in England and Wales.

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

My Lords, there are early signs of improvement. In the pioneering Soteria force, Avon and Somerset, the number of cases charged has more than tripled; the number of victims who withdrew at the police stage and post charge remains high, as does the time it takes for cases to pass through each stage of the system. There is further to go to improve the response to rape, but I am pleased to report that all 43 forces are now implementing the Soteria approach.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble and learned Lord the Minister, who is of course a law officer and a criminal lawyer of some distinction. But prosecution volumes are lower now than 10 years ago, despite reported rapes being up by 30,000. He will know that this is a particularly complex and sensitive offence, and it requires resources. Is it not time to experiment with specialist rape courts to give this grave offence the priority and the resources it needs?

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to my noble friend for her Question and for giving me of her time yesterday at our informal engagement so that she could outline the thinking behind this Question on an exceptionally important topic. She asked about introducing specialist courts for sexual violence; we have already completed a national rollout of pre-recorded evidence, which spares victims the ordeal of having to appear in a live courtroom and assists them in giving their evidence to the best effect. We will update the victims’ code so that CPS prosecution teams must meet with rape victims ahead of court cases to answer their questions and allay any concerns that they may have. In the next phase of our specialist sexual violence support project, we will ensure that participating Crown Courts have the option to remotely observe a sentencing hearing by videolink, and that will be available to any victim of crime who seeks it, subject to the agreement of the judge.

[Lord Hogan-Howe (CB)]

My Lords, there certainly are some improvements—and that is to be commended—but they are incremental against, as the noble Baroness, Lady Chakrabarti, said, the stages of the process. It is a particularly difficult set of crimes to investigate, often because of the consent issue where there is an existing relationship or, alternatively, because 70% of the victims are vulnerable at the time of the attack; in fact, they are often selected because of age, infirmity, alcohol or whatever. I wonder whether it is time for the Law Commission to consider whether the law fits the nature of the crime and whether it would allow research with juries to understand why they do not convict in some of these cases—something that is not allowed now. Otherwise, I think both the investigators and the prosecutors are getting worried about the prejudices exhibited sometimes by juries and therefore the charges do not go forward and the whole system stops. I just wonder whether it is time for an objective look at the crime as well as the investigation.

[Lord Stewart of Dirleton (Con)]

My Lords, I am again grateful for that contribution from the noble Lord, who of course speaks from his professional insight and great experience in investigating and superintending police officers working on this. I am aware that there is objective data about jury responses to crimes available which is the result of meticulous study in England and Wales. I can also assure the noble Lord and the House that we as a Government are working with the Law Commissions in relation to that.

[Baroness Sugg (Con)]

My Lords, protection for victims is a key part of how we will see improvements here, and the Government’s end-to-end rape review action plan committed to reducing unnecessary and disproportionate requests for personal information. Can my noble and learned friend the Minister update me on progress in this area?

[Lord Stewart of Dirleton (Con)]

Once again, my noble friend makes an exceptionally important point. Progress on the implementation of Operation Soteria has touched on matters such as the essential aspect of possession and use of a mobile phone. People nowadays are entirely dependent on their phones in all sorts of ways. As the noble Baroness and other noble Lords who have contributed will appreciate, mobile phones are often pivotal in the investigation and accumulation of sufficient evidence with which to bring a charge. We are taking steps, and the Soteria principles set out, so that phones will be away from people for one day at the most.

[Baroness Hussein-Ece (LD)]

My Lords, Operation Soteria has been widely welcomed and it is positive to see the encouraging outcomes in the pilot areas, as the noble and learned Lord has outlined. But we know that, to improve rape prosecution, there needs to be meaningful action to transform policing culture, in which institutional misogyny, racism and other forms of discrimination are harming survivors. What further action is being taken to tackle this corrosive culture of abuse? Police abuse of power for sexual purposes is now the biggest form of corruption dealt with by the police complaints body, and we need to tackle this.

[Lord Stewart of Dirleton (Con)]

The Government have established a unit in the Home Office which will work in conjunction with police chief constables in order to attempt to shape police responses, attitudes and—for want of a better expression—the general culture within the police force. Beyond that, I hope I can give the noble Baroness some assurance that, from now, all new recruits and first responders will be trained and acquainted with the Soteria principles.

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[Baroness Kennedy of The Shaws (Lab)]

The question is, and it is an important one: what has happened to those SARCs? How many are there in the country? They seem to have disappeared off the radar, and young women do not even know that they exist.

[Lord Stewart of Dirleton (Con)]

My Lords, I do not have to hand the information that the noble Baroness seeks, but I undertake to write to her. I am aware of the existence of SARCs. They came in and were located within hospitals so that people did not face the daunting prospect of immediate engagement with the criminal justice system but were brought in gradually. I share the noble Baroness’s concern about this matter and, with her leave, will write to her.

[Lord Campbell of Pittenweem (LD)]

My Lords, the Minister will understand that my experience in relation to prosecuting and defending rape is, to put it mildly, dated. He will, of course, be aware of the proposals now being made north of the border. To what extent are these being taken into account in the other jurisdiction in which he has responsibility?

[Lord Stewart of Dirleton (Con)]

My Lords, I am happy to say that my professional arc and that of the noble Lord have coincided, so he and I share experiences in this field. The point the noble Lord makes is—as the noble Lord is—an evergreen one. Certain essentials in relation to these matters exist and will always exist. On the specific matter the noble Lord raises, in my ministerial post I am very conscious of developments in Scotland and assure the noble Lord that, together with the England and Wales law officers—with whom I am in regular contact: we have a meeting once a week—we share with one another data and experiences and the work that we carry out in the field in order best to improve practices in all jurisdictions.

[Baroness Thornton (Lab)]

My Lords, of course, we all welcome any reversal of the catastrophic collapse of rape prosecutions since 2017. However, conviction rates seem to be flatlining. I know that the press release from the MoJ says that more rapists were put behind bars, but if you dig into those figures, that 3% increase meant 12 convictions—I think that is fewer than any year from 2010 to 2018. Will the noble and learned Lord the Minister tell the House when the backlog which leads to two-year waits—which are so corrosive with rape issues and the lack of making progress on rape—is going to be reduced and how?

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[Lord Stewart of Dirleton (Con)]

My Lords, the Operation Soteria principles in relation to this field are directed to improving every aspect of rape prosecution and the management of people complaining of those serious crimes. I can give the noble Baroness some assurance, but she will appreciate that the data that I give is, in essence, at an early stage, because the reforms that Soteria introduced will take time to bear fruit—she is good enough to nod in assent that she appreciates the difficulties. The outcomes have varied between the participating forces thus far. The joint council between the Home Office and police officers that I mentioned earlier will examine quite why that should be. We have seen encouraging results in Avon and Somerset, in Durham and in the West Midlands. In the last example, the number of cases referred has doubled—I appreciate that that is not the matter with which the noble Baroness is specifically concerned, but referrals have risen by 108%. In that area, I think that the House can take some comfort and think that Soteria’s workings-out are bearing fruit in policing practice.

Illegal Migration Bill

Lord Stewart of Dirleton Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

Moved by

[Lord Stewart of Dirleton]

11: Clause 3, page 5, line 35, at end insert—
“(10A) A statutory instrument containing regulations under subsection (7) must be laid before Parliament after being made.(10B) Regulations contained in a statutory instrument laid before Parliament under subsection (10A) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(10C) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(10D) If regulations cease to have effect as a result of subsection (10B) that does not—(a) affect the validity of anything previously done under the regulations, or(b) prevent the making of new regulations.”Member’s explanatory statement
This amendment applies the “made affirmative” procedure to regulations under clause 3(7) (power to make provision for other exceptions from the duty in clause 2(1)).

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

My Lords, I can be relatively brief in explaining these government amendments. In short, they either respond to recommendations by the Delegated Powers and Regulatory Reform Committee or make minor drafting or technical refinements to the Bill. I turn first to the amendments responding to the DPRRC report.

Clause 3(7) confers a power on the Secretary of State to make exceptions from the removal duty under Clause 2. The Bill on introduction provided for such regulations to be subject to the negative procedure. The DPRRC suggested that the affirmative procedure would be more appropriate. Amendment 11 provides for the “made affirmative” procedure to apply, given the need to make regulations quickly, including ahead of implementation of the duty to remove.

The DPRRC similarly recommended that regulations made under Clause 10 setting out the circumstances in which unaccompanied children may be detained should also be subject to the affirmative procedure. Again, we have accepted the committee’s recommendation, and Amendments 54, 60 and 62 make the “made affirmative” procedure apply on the first exercise of the power—again with a view to early implementation of the Bill—but thereafter the draft affirmative procedure will apply.

Amendments 129 and 169 relate to the power to amend the definition of a “working day” in Clause 37(8). This definition applies for the purpose of various time limits for appeals under Clauses 47 and 48. The DPRRC argued that the power was inappropriate in enabling changes to be made to the meaning of “working day” in relation to actions to be taken by persons bringing an appeal. Having considered carefully the committee’s report, we have concluded that the power is not required, and Amendments 129 and 169 remove it from the Bill.

Amendment 18 is a drafting amendment and simply ensures that Clause 5(3) and (4) dovetail in referring to a country or territory.

Amendments 38 to 41 are also drafting amendments. They simply supplement the reference to the Secretary of State in Clause 7(8) and (9)—which relate to the removal powers—with reference to an immigration officer; this is done for consistency with other provisions in Clause 7.

Finally, Amendments 81 to 84 and Amendment 86 relate to the definition of an “appropriate adult” in Schedule 2. Under Schedule 2, any search of a person under 18 in which that person is required to remove any clothing other than an outer coat, jacket or glove must be in the presence of an appropriate adult. These amendments ensure that the definition of an “appropriate adult” works across the United Kingdom. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we are happy to support the Government’s amendments. The Bill currently contains extensive secondary instruments that would limit Parliament’s ability to provide ongoing scrutiny. However, these changes still relegate decision-making to secondary legislation rather than being in the Bill. The Government may market these changes as a concession to this House, but we regard them more as a bare minimum.

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Amendment 37 is particularly important, because although there are exceptional circumstances, it would be left to the discretion of the Home Secretary at the time, and therefore this provision needs to be put into the Bill. I would say that we have a moral obligation to ensure that, if we are going to deport thousands of people—if our Government are going to pass legislation which allows not thousands but tens of thousands to be deported—it is even more incumbent upon us to ensure that the countries to which they would seek to return those people are safe.

[Lord Stewart of Dirleton (Con)]

My Lords, these amendments go to the issue of whether it is safe to remove a person to a country listed in Schedule 1. It remains the Government’s view that these amendments are not necessary. I will briefly set out why that is the case.

It is not the case that anyone who meets the conditions in Clause 2 can be sent to any of the countries listed in Schedule 1 without further ado. In the case of a national of a non-Section 80AA country, were they to make a protection claim or human rights claim they could not be returned to their home country. In speaking to his amendment the noble and learned Lord, Lord Etherton, itemised a number of the countries with which he has particular concern. For the sake of brevity, I will answer by reference to a single example, but that example covers the list: a Gambian LGBT person fearing persecution if they were returned to Gambia would not be so returned if they make an asylum claim.

The point was taken up by the right reverend Prelate the Bishop of Manchester. The noble Lord, Lord Cashman, spoke with power and made specific reference to an individual example, and the noble Lord, Lord Coaker, returned to the point when summing up. However, I reiterate that an LGBT person fearing persecution if they were returned to their own country would not be so returned if they make an asylum claim.

In the case of a national of a Section 80AA country, the fact that they have raised a protection or human rights claim against their country of nationality would not be a bar to their removal to their home country, unless the Secretary of State considers that there are exceptional circumstances why they cannot be removed there. The noble Lord, Lord Coaker, in summing up from the Opposition Benches, drew our attention to the concern that that might lay open this serious matter to the idiosyncrasies of a particular Home Secretary, but I urge your Lordships to consider that the countries with which we are dealing here are EU and EEA countries, plus Switzerland and Albania, all of which, we maintain, are clearly safe. That said, if it was considered that there were exceptional circumstances, they would not be removed there and would instead be removed—

[Lord Hacking (Lab)]

I have listened intently to the argument that was presented, particularly by the noble and learned Lord, Lord Etherton, and I just make a very simple proposition. Would it not be much safer to adopt Amendment 37, rather than leaving it to individuals as to whether they make an asylum claim and in what circumstances? That is why I ask the Minister to think again about this.

[Lord Stewart of Dirleton (Con)]

My Lords, the Government Front Bench will reflect, as your Lordships would expect, on submissions made on the Floor of the House at this stage. With respect to the noble Lord, I will defer my consideration of that point until later in my submission and will take matters in a different order. I will return to that point.

[Lord Cashman (Lab)]

My Lords, I accept the principle of non-refoulement to a country—a Ugandan going back to Uganda—but there is the wider issue of a gay Ugandan being sent to a country such as Gambia or Kenya. I seek reassurances on that.

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[Lord Stewart of Dirleton (Con)]

I hope to be able to provide that reassurance. Again, with reference to the important point that the noble Lord takes up, which is fully appreciated by the Government Front Bench, I will refer to that in the course of my submission to your Lordships.

I repeat: if it was considered that there were exceptional circumstances, a person would not be removed to his home country. Coming as quickly as I may to the point just raised in an intervention by the noble Lord, Lord Cashman, the country to which they return would be a country considered to be a safe one. A person would not be removed to their home country but at the same time would not be removed to a country where they would be exposed to the same level of risk as they would by dint of their sexual orientation.

If we were to seek to remove a third country’s national to any of the countries listed under Schedule 1 and that country were prepared to admit them, those persons would have the opportunity to make a serious harm suspensive claim. Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Such an individual would not be removed to that country if their claim was accepted by the Home Office or upheld by the Upper Tribunal on appeal. So I submit respectfully to the House that the Bill already provides for individual assessments—the very individuality for which the noble Lord, Lord Purvis of Tweed, called in his powerful submission on these important matters. The Bill already provides for that degree of consideration of individual facts and circumstances for which the noble Lord, among others, has called. As such, I consider that Amendment 20, advanced by the noble Lord, Lord Purvis of Tweed, is unnecessary.

[Lord Purvis of Tweed (LD)]

The Minister might be able to help me. Where does the Bill outline the process for that individual review of the individual circumstances?

[Lord Stewart of Dirleton (Con)]

My Lords, in the making of the serious harm suspensive claim, those individual circumstances would be outlined.

[Lord Purvis of Tweed (LD)]

My Lords, the claim can be made only after the notice is provided, but the Minister just told us that there would be an individual process before the notice was provided. Is that correct?

[Lord Stewart of Dirleton (Con)]

My Lords, I do not think I did. The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Hence there is consideration of individual facts and circumstances.

On Amendments 19, 21, 24 to 28 and 37, I make an observation, namely that much in Clauses 5 and 6 and Schedule 1 draws on existing immigration law dating back some 20 years. To that extent, the provisions contained therein are not new; they provide necessary clarity as to the country to which a person may be removed.

As regards the consideration of the status of countries as places to which persons can be removed safely and which are on the safe list, that list has been added to over the years. It is instructive that some of the countries added to the safe list in terms of the Nationality, Immigration and Asylum Act 2002 were added during the period when the party opposite was in power: in 2003 Albania and Brazil; in 2005 India, Ghana for men and Nigeria for men; in 2007 Gambia for men, Kenya for men, Malawi for men, Mali for men, Mauritius, Montenegro and Sierra Leone for men—I merely exemplify. I reiterate that these are not novel provisions. They provide the necessary clarity as to the country to which a person may be removed.

The noble Lord, Lord Alton of Liverpool, raised a matter concerning the nature of the—

[Lord Alton of Liverpool (CB)]

Protected characteristics.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for his assistance. I refer him to the equality impact assessment we have published, which in short order answers his question. Again, I am grateful to him for helping me out in my difficulty there.

[Lord Alton of Liverpool (CB)]

After today’s debate, before we reach group 17 and my Amendment 163, which is on safe routes but which also incorporates this idea of using protected characteristics as contained in the Equality Act 2010, perhaps the Minister can give some further consideration as to whether that might be a useful criterion to use as and when the Government decide on the formula that we use for safe routes.

[Lord Stewart of Dirleton (Con)]

My Lords, in the face of that characteristically thoughtful and constructive suggestion, I am happy to assure the noble Lord that we will consider that between now and the point he refers to in relation to his forthcoming amendment.

On Amendment 37, tabled by the noble and learned Lord, Lord Etherton, I know that he has had the opportunity to discuss this amendment with the Attorney-General, my learned friend in the other place. Following that discussion, I will make one further point that I hope will reassure the noble and learned Lord. If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld.

[Lord Etherton (CB)]

I am grateful for what the Minister just said in relation to the ability of an openly gay, lesbian, transgender or bisexual person to live in a particular country. If, acting in that open way, they had a well-founded fear of persecution, as I understand it the Minister is saying that that would satisfy serious and irreversible harm. That is not apparent in the Bill, and to make that clear would itself require an amendment to Clause 38, which we will come to in due course.

But I am left, I am sorry to say, somewhat perplexed by the Minister’s analysis of the application of Article 7 proceedings against a particular country. In asking this question of the Minister, I can deal with the point from the noble Lord, Lord Jackson. There are two different situations under the Bill under which the issue of removal arises. The first, which is found at Clause 5(4), is where the person

“is a national of a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002.”

That renders inadmissible certain asylum and human rights claims because they are deemed to be safe states.

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[Lord Etherton (CB)]

My first question is: does the Minister not agree that that is quite different from the case that the noble Lord, Lord Cashman, raised, where a person is not from a country listed in Section 80AA(1) but from another country? There is a separate provision for that in relation to removal to a Schedule 1 country. Does the Minster not agree that, although Clause 5(5) deals with the Section 80AA point, there is no equivalent to that exception in relation to a situation where somebody comes from a non-EU country that is a non-safe place and the consideration is now to move that person to a Schedule 1 country? What my amendment is dealing with is not the Section 80AA situation but the situation categorised by the noble Lord, Lord Cashman, where a person from a non-safe European state comes here and is threatened to be removed to a Schedule 1 country. All I said—and I am asking the Minister to acknowledge this—is that there should be a similar provision for that situation, for the exclusion of those countries that are facing proceedings under Article 7. That is it.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Etherton, of course, for his intervention. It seems to me that the point he raises is one that calls for a degree of interpretative scrutiny that I do not think I am in a position to give at this stage from the Dispatch Box. I wonder if he would be content were I to undertake to write to him on the point that he raises.

[Lord Etherton (CB)]

I am grateful for the Minister writing, but at the moment it seems to me that the Minister has not really addressed my point about the need for such a provision and the exclusion of such countries. On that basis, I would be minded to press the amendment.

[Lord Stewart of Dirleton (Con)]

My Lords, I suspect that nothing I could say from the Dispatch Box will alter the fixed purpose of the noble and learned Lord in any event, but I do repeat my undertaking to write to him on the topic.

I was about to address the matter raised by the noble Lord, Lord Purvis of Tweed, in relation to secret agreements. The Government must retain, I submit, the ultimate discretion over the amount and detail of any information shared with Parliament, but the Government remain committed to principles of transparency and positive engagement. This is considered on a case-by-case basis, finding a balance proportionate to the level of public interest.

[Lord Purvis of Tweed (LD)]

If that is the case, by definition, these agreements will not be treaties, and these agreements will not have gone through the CRaG process, and therefore they will not be binding.

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat the point. The Government retain discretion to enter into agreements and discretion in relation to the level of detail to be shared.

[Baroness Butler-Sloss (CB)]

I am so sorry to interrupt the Minister again, but could I ask a straightforward question? What is the view of the Government about countries they are referring to that have not joined, or have not signed up to, the refugee convention?

[Lord Stewart of Dirleton (Con)]

The straightforward answer to the noble and learned Baroness’s question is that we are content to treat with countries that have not signed up to the refugee convention.

On Amendments 29 to 36, the Secretary of State may add a country to Schedule 1 by regulations only if satisfied that there is in general in that country or part of it no serious risk of persecution and will not in general contravene the United Kingdom’s obligations under the human rights convention. In so doing, the Secretary of State must have regard to information from any appropriate source, including member states and international organisations. The views expressed by the United Nations High Commissioner for Refugees on a particular country, among other sources of information, will therefore be considered before a country is added to Schedule 1.

In response to the amendments tabled by the noble Baroness, Lady Hamwee, our contention is that, when considering adding a country to the list in Schedule 1, we need to consider the position in the round. We do not live in a perfect world, so it is reasonable to assess a country on the basis that they are generally safe and to consider the possibility of adding to the list only a part of a country.

The noble and learned Lord, Lord Etherton, raised the matter of Rwanda. In relation to protections for LGBTQ+ persons in that country, the constitution of Rwanda includes a broad prohibition on discrimination. Rwanda does not criminalise or discriminate against sexual orientation in law, policy or practice.

[Lord Etherton (CB)]

My Lords, where does the Minister get the evidence to say that, in practice, as opposed to what is written in the constitution, there is no persecution? There are numerous independent reports and newspaper reports, as well as the Foreign Office’s own advice, to indicate that there is a real risk of persecution in Rwanda, especially for trans women.

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[Lord Stewart of Dirleton (Con)]

As the noble and learned Lord will be aware, the Rwanda litigation found it to be the case that Rwanda was safe. Beyond that, in relation to the sources of information, the Government operate on the basis of information gathered by their officials, discussed with Ministers and considered in relation to legislation to be put forward.

[Baroness Wheatcroft (CB)]

On that point, can the Minister tell the House whether we should take any notice of guidance from the Foreign Office on whether countries are safe to visit?

[Lord Stewart of Dirleton (Con)]

The guidance furnished by the Foreign Office to British citizens for travelling is a separate matter from the guidance upon which the Government are relying in the present case. I can see that that clearly has not impressed the noble Baroness, but none the less it is the position.

[Lord Scriven (LD)]

Why would the Minister tell me, and others who identify as LGBT, that it is not safe to go to a country because we would be in fear of our safety, yet deport to that country an LGBT national from another country having decided that they would be safe and not in fear of persecution? What is the difference?

[Lord Stewart of Dirleton (Con)]

The Government are acting on the basis of information in the context of these provisions.

[Baroness Kramer (LD)]

Can the Minister give clarification? The context is that one is a British citizen and the others are not British citizens, and therefore their standards are different. That must be the interpretation: that the Government have a benchmark for British citizens but a completely different benchmark for those who are not British citizens. Can the Minister please explain this much lower benchmark?

[Lord Stewart of Dirleton (Con)]

In setting the benchmark for countries that are safe for persons to be sent to, the Government are looking at it from the point of view of the objectives of the Bill. We are not looking at it from the point of view of British citizens travelling abroad.

The Bill already includes adequate safeguards to protect those in fear of persecution based on their sexual orientation, gender identity or other protected characteristics, or those who are fearful of onward refoulement. I say again that these amendments are unnecessary, and therefore invite the noble Lord, Lord Carlile, to withdraw Amendment 19. Although we will not be voting tonight, for reasons explained, I urge the noble and learned Lord and other noble Lords—

[Lord Purvis of Tweed (LD)]

Can the Minister give clarification on the point I raised that he has not replied to—the interaction not with Section 80AA of the Nationality, Immigration and Asylum Act 2002, which will be amended by this Bill, but with the definitions of a safe third state under Section 80B of that Act? How will they interact? The asylum claims by persons with a connection to a safe state has the definition, as I referred to, of a safe third state under the 2002 Act. That is not being amended by this Bill. The definition of a safe third state in the 2002 Act, which will still be on the statute book, unamended by this Bill, states that the safety is defined if they will receive protection in accordance with the refugee convention. How will they interact? We have the 2002 Act still on the statute book, where a state that is not a signatory to the refugee convention is defined as a non-safe state, but, as the Minister has told us, under this Bill the same is not being applied.

[Lord Stewart of Dirleton (Con)]

My Lords, as I stated at the outset, the position is that the provisions for the ability of people to bring applications for serious harm suspensive claims allow for scrutiny of the safety of any location to which a person would be sent.

I was on the point of saying that, although we will not be voting this evening, I none the less urge the noble and learned Lord, Lord Etherton, and other noble Lords not to press their amendments.

[Baroness Butler-Sloss (CB)]

My Lords, I thank everyone who has spoken on this group. In relation to Amendment 19, it is not proposed to test the opinion of the House.

Offences Against the Person Act: Section 58

Lord Stewart of Dirleton Excerpts

Thursday 15th June 2023 Lords Chamber

[Baroness Thornton]

To ask His Majesty’s Government what assessment they have made of the recent application of section 58 of the Offences Against the Person Act 1861.

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

My Lords, the Government are committed to ensuring access to safe, regulated abortion for all women in England and Wales on the NHS. It would be inappropriate for me to comment on specific criminal cases, especially those which may—and I understand will—be subject to appeal proceedings, or on prosecution decisions made by the CPS independently of government. Abortion is a contentious issue on which the Government maintain a neutral position. It is, however, open to Parliament to propose changes to the law in this area, which, as a matter of conscience, would normally be subject to a free vote.

[Baroness Thornton (Lab)]

I thank the Minister for that Answer, and I thank the Government for decriminalising abortion in Northern Ireland in 2019 and repealing the effect of Sections 58 and 59 of the Offences Against the Person Act 1861 at that time, which brought Northern Ireland into compliance with our obligations under CEDAW. Like everyone else, I recognise how distressing and troubling the case is which prompted this Question. One of the effects of the changes in Northern Ireland is that since 2019, evidence suggests there has been an increase of 25% in referrals, but many of them from other parts of the United Kingdom, not including Northern Ireland. These are women and girls, particularly those in bad relationships, or young girls, who are unsure of time limits and are anxious about being investigated by the police and prosecuted. Does the Minister agree that this suggests that the issue to be addressed is ensuring a right to abortion advice and lawful treatment?

[Lord Stewart of Dirleton (Con)]

My Lords, the position is that all women have access to safe and legal abortions on the NHS in England and Wales. As I say, it would be inappropriate for me to comment on specific cases. I remind the House that abortion is a matter devolved to Northern Ireland and, indeed, to Scotland.

[Baroness Eaton (Con)]

My Lords, does not my noble and learned friend the Minister agree that, to prevent such tragic offences from occurring in the future, the Government should urgently propose legislation to reinstate the requirement for women to be seen in person at least once before being prescribed abortion pills?

[Lord Stewart of Dirleton (Con)]

My Lords, the current provisions applying in this area were brought in during the Covid pandemic when face-to-face access to medical personnel was restricted. The relevant department keeps the matter under review.

[Baroness Barker (LD)]

My Lords, will Minister confirm that if a woman presents at a hospital and says she has taken abortion pills, there is no legal obligation for any health worker to report her to the police? Given the increasing number of women, including those who have had miscarriages, being reported to the police, will he undertake to work with the royal colleges and the professional bodies as a matter of urgency to review the guidance?

[Lord Stewart of Dirleton (Con)]

I am happy to give an undertaking that the Government will work, as they continue to do, with the relevant professional bodies to which the noble Baroness referred.

[Baroness Blackstone (Lab)]

My Lords, I declare an interest as the chair of the trustees of the Royal College of Obstetricians and Gynaecologists. Healthcare professionals must be able to provide abortion care without the threat of criminal sanctions, which do not apply to any other healthcare professionals. Increasing the role of qualified nurses and midwives is extremely important, as well as removing the chilling effect caused by criminal law intervention that means that many doctors fear getting involved in abortion care due to the specific threat of criminalisation. What are the Government doing to address this?

[Lord Stewart of Dirleton (Con)]

My Lords, the professional body which the noble Baroness chairs will no doubt promulgate correct information to its members as to their standing in law in relation to these complex and sensitive matters. As I said in answer to the previous question, the Government will work with the relevant professional bodies in relation to this.

[Baroness Sugg (Con)]

My Lords, the facts of this case are extremely distressing and highlight the need to continue to work to ensure that women, particularly vulnerable women, can access abortion as early and safely as possible. We have made recent progress in this area, ensuring the introduction of safe-access zones, which was supported by your Lordships in the Public Order Act. I appreciate that their implementation may be complicated, and I am grateful to the Government and civil servants for their work on this, but can my noble and learned friend the Minister tell me when they will be introduced?

[Lord Stewart of Dirleton (Con)]

First, I am grateful to my noble friend for her courtesy in giving me advance notice of the point she wished to raise. It is completely unacceptable that anyone should feel harassed or intimidated. The police and local authorities have powers to restrict harmful protests and we expect them to take action in such cases. I cannot answer her with a specific date, but I can tell her that we are working through the complexities of implementing border zones, and that my right honourable friend the Home Secretary, speaking yesterday to the Home Affairs Select Committee, undertook to write to them to bring them fully up to date on the point raised.

[Baroness Northover (LD)]

My Lords, yesterday the noble Baroness, Lady Deech, questioned the justice in retaining a statute of 1861—before women had the vote—whereby a mother could be sent to prison for an abortion, describing this as

“an outdated and barbaric method of punishment”,

and there was widespread agreement in this House. Can the Minister go back and consider both his reply and that of the noble and learned Lord, Lord Bellamy, who said yesterday:

“This is a contentious issue and the Government maintain a neutral position”.—[Official Report, 14/6/23; col. 1992.]


Does this not lack courage and is this approach itself not seriously outdated, failing to protect women and girls? In our development programme, we have led the way; why are we being so timid in the United Kingdom?

[Lord Stewart of Dirleton (Con)]

My Lords, the criminal offences in the main exist to address the harm caused by those who force or coerce someone into terminating their pregnancy. Cases of this nature brought to the court are extremely rare, and that is reflected in the absence of specific sentencing guidelines relating to this. The rarity of prosecutions reflects the CPS’s approach, independent of government, to bringing cases where they determine that there will, or will not, be a public interest.

[Baroness Gale (Lab)]

My Lords, does the Minister agree that access to abortion advice and lawful treatment should be a right given to women and girls so that they understand that they are entitled to help, advice and support and can confidently seek that help promptly? More information should be available so that situations that happened during Covid lockdown, when women and girls did not have access to face-to-face consultations with their GP, and instances such as happened recently, never happen again. Women should not be jailed and children should not be deprived of their mother. We are in 2023 and we are using a law of 1861. Can he do all he can to try to amend this law?

[Lord Stewart of Dirleton (Con)]

The noble Baroness speaks with compassion on the effects of this. I have to reiterate just a couple of points that I made. The decision to prosecute was one made independently of government. The matter was considered by the sentencing judge. As to the promulgation of advice via the NHS, I would be happy to relay the noble Baroness’s concerns to the Minister in the relevant department.

[Lord Cormack (Con)]

My Lords, my noble and learned friend is entirely and scrupulously right in refusing to comment on the specific case that has occasioned the Question. However, does this not bring into focus the whole issue of custodial and non-custodial sentences? Should we not look at this extremely carefully? Our prisons are too full; sending people to prison obviously often does far more harm than good. I really believe that we should look at things such as community restorative justice in cases like this. Would he care to consider that?

[Lord Stewart of Dirleton (Con)]

My Lords, I agree wholeheartedly with the views expressed by my noble friend. The sentencing process is, of course, one independent of government. The matter is, I understand, is to be brought before the Court of Appeal. In addition to that, there is the possibility that the Criminal Cases Review Commission will take an interest. Ultimately, there is the possibility that the royal prerogative of mercy could be exercised in favour of the woman concerned.

Strategic Lawsuits against Public Participation

Lord Stewart of Dirleton Excerpts

Thursday 1st December 2022 Lords Chamber

[Baroness Falkner of Margravine]

To ask His Majesty’s Government what assessment they have made of the use of Strategic Lawsuits against Public Participation (SLAPPs) and their impact on public scrutiny.

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

My Lords, strategic lawsuits against public participation, or SLAPPs, are an abuse of the legal process designed to close down inquiries and prevent the publication of information in the public interest. It is the Government’s intention to pursue primary legislation for targeted anti-SLAPP reform as soon as parliamentary time allows. We remain committed to upholding our fundamental democratic values of free speech and a free press, ending abuse of the legal systems of the United Kingdom and defending investigations in the public interest.

[Baroness Falkner of Margravine (CB)]

I thank the Minister for his reply, but I detect a lack of urgency. There is a good reason why these cases are known as intimidation cases. As he said, they are used to stifle public interest investigations by journalists, exposing those involved in corruption, illicit finance and political wrongdoing, aided and abetted by London law firms through forum shopping. This has a clear chilling effect on press freedoms, as Catherine Belton, Tom Burgis or even those working abroad, such as Paul Radu, can testify. Will the Minister take forward with a level of urgency proposals put forward by the anti-SLAPP coalition to allow for claims to be filtered out at an early stage by courts, to put in penalties to deter meritless claims and to provide compensation for those targeted?

[Lord Stewart of Dirleton (Con)]

In relation to the first two of the ameliorative matters which the noble Baroness identified, I can assure the House that those are within consideration and will be enacted in the forthcoming measure. As to the third matter, although the noble Baroness chides me, I can assure the House that what she styles as a delay is not in fact procrastination but a matter of identifying a suitable legislative vehicle to put these very important matters on to the statute book.

[Lord Shipley (LD)]

My Lords, the Government claim to prize and to defend free speech, and the Minister has said that the Government’s intention is to introduce primary legislation as soon as parliamentary time allows. The problem is that fear of a costs order does not deter rich organisations and individuals from abusing the court process, with unmeritorious cases brought only to stifle journalists’ criticism of their activities. So what has been holding the Government back from legislating to enable such cases to be stopped in their tracks, and how long will it be before the primary legislation will be introduced?

[Lord Stewart of Dirleton (Con)]

My Lords, as I said, the delay in this matter, if I may style it in those terms, is not a case of the Government attempting to procrastinate and to kick the matter into the long grass. Rather, it is, as I said in my Answer to the noble Baroness’s Question, a matter of identifying the suitable legislative vehicle into which these measures can be inserted. Were we to proceed to insert this into, for example, the economic crime Bill, which was considered and dismissed, the risk would have been that we would have framed this very serious abuse of process too narrowly. That is why it is important that we legislate appropriately as well as quickly.

[Baroness Stowell of Beeston (Con)]

My Lords, I declare my interest as chair of the Communications and Digital Committee and refer the House to my recent correspondence with both the Lord Chancellor and the Solicitors Regulation Authority. I welcome my noble friend the Minister’s commitment to bring forward legislation, and I note his recognition of this matter being urgent. None the less, bringing forward any legislation is likely to take time, so what steps are the Government taking now, or could they take, to support those journalists and public bodies who are currently subject to this highly aggressive and costly legal activity, which, as we have already heard, is aided and abetted by solicitors?

[Lord Stewart of Dirleton (Con)]

My Lords, in answer to my noble friend’s first point, the Solicitors Regulation Authority has already acted—and acted well—by issuing warnings to firms about the practices which characterise SLAPPs. It has instigated a thematic investigation of 20 firms thought to have been participating in this activity. As for the government answer, the Government are intending to bring forward this legislation, which will bring in caps on costs and allow for the rapid dismissal of inappropriate or insubstantial claims to foster a culture of free investigation and free speech.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, a conference has just taken place here in London about anti-SLAPP legislation. It is absolutely right, as the Minister has said, that the Solicitors Regulation Authority has issued a statement warning firms and solicitors about their support for these sorts of actions. This is about money and power. I ask the Minister whether the abuse of those kinds of injunctions and legislation will also be used to protect women who are bringing allegations against powerful men of sexual abuse in the workplace? The Philip Green case is an example of where the Telegraph was injuncted over five accusations, which were eventually exposed, and he then withdrew his claim against the women. These actions have been used against women too, so will the Government include women, and the abuse of the legal process by the powerful to silence them, in this?

[Lord Stewart of Dirleton (Con)]

My Lords, it is the privilege of the legal profession to act for the weak against the powerful. On the specific point which the noble Baroness raises, I will write to her. I can assure her and the rest of the House that the provisions against SLAPPs are intended to be drawn widely. She brings forward the important question of whether there is an imbalance against women in the steps being taken in this abusive process. I am grateful to her and will correspond with her.

[Lord Lisvane (CB)]

My Lords, awaiting a suitable legislative vehicle is an ancient excuse—or possibly reason—for not legislating, but, with respect, I am a little sceptical about the Minister’s assertion that inserting these provisions in an economic crime measure would, as it were, narrow them. Putting these provisions in a Bill which is largely about a different subject does not, of itself, narrow them; the key thing is how those provisions themselves are drafted.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

The noble Lord is quite correct, and of course I defer to his extensive experience in this area. None the less, I submit that it is of fundamental importance that legislation is brought appropriately and in a manner which is workable. The Government are aware of attempts to bring in anti-SLAPP legislation in other jurisdictions, which have in fact been counterproductive and have served the interests of the people who would use this insidious means of stifling free speech and free investigation. The Government must take steps which work.

[Baroness Chapman of Darlington (Lab)]

My Lords, I do not think that there are many of us who are really buying this defence from the Minister today, but I can confirm that these Benches would be very happy to work with the Government to find the time and the appropriate vehicle to achieve the ends that we all want to see. We are all concerned about transparency and trust in politics. Therefore, will the Minister please inform the House, first, of how many donors to the Conservative Party have made use of strategic lawsuits against public participation, and, secondly, of the total amount donated by these individuals?

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Baroness for her indication of her preparedness to work on a matter which I think is a concern for the whole House. I am also grateful to her for her ready acknowledgment that these concerns are shared across the entire spectrum of British politics. As to her specific question, I will not comment on individual cases, and nor will noble Lords consider it appropriate for me to do so.

[Lord Fox (LD)]

My Lords, I do not think that your Lordships’ House doubts the sincerity of the Minister when he says he wants to get this legislation done, but he knows that there is a big queue of legislation trying to get through both Houses. One way of ensuring this happens quickly and efficiently when the slot comes is to publish a draft Bill, have some pre-legislative scrutiny, and get it in line and agreed before we actually get that slot to legislate.

[Lord Stewart of Dirleton (Con)]

I take the noble Lord’s point and can tell him that one of the campaigning organisations which has been doing magnificent work in this field has prepared a model law which will be scrutinised not only by the Government but, in due course, by parliamentary draftsmen to see how far that can assist the process of bringing something timeously on to the statute book.

Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

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

My Lords, as we approach what I think will be the final series of amendments for discussion tonight, I am grateful to all noble Lords for their thoughtful and entirely well-intentioned contributions to this important debate.

Clause 1 summarises the effect of the Bill and gives vital clarity on how it will function. The noble and learned Lord, Lord Judge, was critical of its drafting—indeed, of its presence in the Bill itself. He may be right to be critical but there have been, and will always be, changes in the manner in which legislation is drafted; there certainly have been over the past few years. In a matter of this sort, it is perhaps important as a matter of perception, given the history to which some contributors among your Lordships have referred, that the Bill carries assurances in Clause 1.

The clause sets out that the Bill makes domestic provision in connection with the disapplication of specific areas of the Northern Ireland protocol that are causing problems. It also sets out that the Bill provides Ministers with powers in connection with the further disapplication of additional areas of the Northern Ireland protocol according to specific purposes, as well as powers to make new domestic arrangements. The clause also clarifies how other legislation, such as the important Acts of Union, is affected by the Bill. I recommend that the clause stands part of the Bill.

Clause 2 will underpin the essential functioning of the Bill by confirming that any part of the protocol or withdrawal agreement that has been excluded by the Bill’s provisions has no effect in domestic law. I think it is recognised around the Committee that, at this point, we are coming away from the preamble of Clause 1, as we might call it, into the heart of the Bill and what it intends to accomplish. I certainly took the noble Baroness, Lady Hoey, and the noble Lords, Lord Morrow and Lord Browne of Belmont, to understand that fully when they talked about ripping the heart out of this Bill through these proposed amendments.

The noble Baroness, Lady Hoey, and others, including the noble Baroness, Lady Chapman of Darlington, referred to the difficulties. I think that, wherever it stands on this Bill, the Committee is united on the fact that there are grave difficulties in Northern Ireland. I had the honour of briefly meeting the commercial director of McCulla Ireland on a visit to your Lordships’ House; I listened with great interest and concern to the matters raised by him.

The vital approach of these clauses is to amend the relevant provisions of the EU withdrawal Act that currently give domestic effect to the protocol and withdrawal agreement. This technical provision is, as noble Lords have recognised, vital for the Bill to function as, without it, there may be a lack of clarity as to which of the existing protocol and EU law regime, on the one hand, and the revised operation of the protocol, on the other, has effect. Where this Bill or its powers do not exclude a provision in the protocol or withdrawal agreement, that provision will continue to have effect via the EU withdrawal Act, as now. In answer to a point made in a debate on an earlier group, I emphasise that what the Government are proposing is not the ripping up of the protocol but directed action to those parts of the protocol that are not working. The Bill seeks to leave untouched the remainder of the protocol’s passages that are providing benefit, as was always intended to be the case. I therefore recommend that this clause stands part of the Bill.

Clause 3 supplements Clause 2 and will remove the requirement for courts to interpret relevant domestic law in line with the withdrawal agreement in so far as that would lead to an interpretation of domestic law that is incompatible with the Bill and any regulations made under it. This is done by the amendment of the relevant provision of the EU withdrawal Act, which currently requires courts to interpret relevant separation agreement law and domestic law consistently with the withdrawal agreement. Instead, it is made clear that no such interpretation should be made if this would be incompatible with provisions of the Bill or any regulations made under it. It is vital to provide certainty as to how the regime should operate, so I recommend that this clause stands part of the Bill.

We have had, I submit, a lengthy and important debate during this stage of the Bill. I seek noble Lords’ forbearance—

[Lord Purvis of Tweed (LD)]

My Lords—

[Lord Stewart of Dirleton (Con)]

I am coming to the noble Lord’s point. I am not proposing to wind up immediately. I acknowledge the importance of the debate we have heard. I pray for noble Lords’ forbearance if I do not respond to every point that has been canvassed specifically in relation to the doctrine of necessity, which we had a debate about in relation to the earlier group.

I anticipate what the noble Lord, Lord Purvis, is about to say. He put certain points to me in relation to the information that he had from the Library of your Lordships’ House. He cites the occasions on which the doctrine of necessity has been founded and outlines significant aspects of those cases to your Lordships’ House, but every legal case will stand on its own merits, and comparison of individual facts and circumstances does little to advance the argument as to the role of necessity in the unique circumstances with which your Lordships’ House is faced. Therefore, with the utmost respect to the noble Lord, the point he makes is of no value.

[Lord Purvis of Tweed (LD)]

I am grateful for the answer. I respectfully believe that my point had value, because if the Government are using precedent and customary law, it is relevant to highlight that it has never been successfully invoked, and it has never been even attempted to be invoked in the way that this Government are doing. Since we are approaching customary international law, it is worth having that on the record.

My specific question was whether the Government’s interpretation of invoking necessity can be permanent, or whether the Advocate-General believes that I am correct with the ICJ stating in clear terms on many occasions that invoking necessity can only be a temporary response of wrongfulness, for grave and imminent individual aspects, but the breach is still there. Or do the Government believe that using necessity can be permanent?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for canvassing that. Again, I accept that it is an important point, as are all those that have been made around your Lordships’ House today.

Not all principles of international law are tested before a court, and acceptance by the international community of a particular practice, or codification by relevant institutions, as in the articles on state responsibility, can provide very significant precedent. Necessity provides a justification for non-performance with specific terms of the protocol, for as long as the circumstances justifying necessity persist. That relates to the temporal point which the noble Lord makes. The relevant circumstances could last for a significant length of time, so it is not necessarily a short-term justification.

[Baroness McIntosh of Pickering (Con)]

I am grateful to have had the opportunity for this debate. I regret to conclude that, despite the affection, respect and regard that I have for my noble and learned friend, and the fact that we are both members of the Faculty of Advocates—albeit I am non-practising—the Government’s legal position remains confused and flawed. On my specific question, the Advocate-General said in a previous debate that the Government reserved the right to invoke Article 16 as the legal base but did not give us the basis on which they would seek to do that. That was regrettable.

I am grateful to all who have spoken, particularly from the Front Benches opposite. I thank the noble and learned Lord, Lord Judge, for responding to the points made by the noble Lord, Lord Bew, more adequately than I could possibly have done. To all those who have spoken from the Northern Irish perspective, the House is absolutely agreed that the protocol is not working. I have had briefs from the National Farmers’ Union, NFU Scotland, and the Food & Drink Federation, which would particularly like to see that matters regarding trade work as smoothly as possible, bearing in mind that the food industry is probably the largest manufacturing industry; it is larger than the car industry. It is a very big sector taken with food, farming and farm production.

So I regret that we have been put in this position and that the Government are wilfully seeking to breach an international agreement and public international law that they freely entered into. I do not intend to press this matter any further this evening, but I reserve the right to revert on Report.

Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Pannick (CB)]

For my part, and I am sure it is true of others who have spoken in this debate, I am not asking the Government to exercise Article 16 tomorrow. The point is that the availability of Article 16 at a later stage is the reason why the test of necessity cannot be satisfied.

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

My Lords, I turn to Amendments 3 and 67 in the names of the noble Baroness, Lady Ludford, and the noble Lord, Lord Purvis of Tweed. The Government acknowledge that the noble Lord and the noble Baroness are right to raise the important issue of the relationship of this Bill to the United Kingdom’s international legal obligations.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, I consider that the amendments proposed are not necessary. The Government have published a statement setting out their legal position. I will expand on that position during my submission, in particular to answer the points raised by the noble Lords, Lord Pannick and Lord Kerr of Kinlochard, and others. None the less, a statement has been published, to which the noble Lord referred, setting out the Government’s legal position that the Bill is consistent with the United Kingdom’s international obligations.

Noble Lords chided me gently for perhaps going on a bit long at Second Reading—

[Lord Cormack (Con)]

Yes, you did.

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend. I was left by some of the strictures and anticipations of my point from noble Lords looking for synonyms for the words “long-standing convention”. However, in light of having been criticised for going on a bit long and the hour, I will confine myself to repeating—or rehearsing—the point noble Lords anticipated I would make.

It is a long-standing government policy and convention accepted by Governments of all parties not to comment on legal advice provided to the Government. A number of noble Lords who have been present in this debate or at Second Reading will understand personally the importance of that, having acted as internal or external counsel to His Majesty’s Government.

I was asked by the noble Lord, Lord Pannick, about the protocol and its place in relation to the Belfast/Good Friday agreement. The protocol puts that agreement at the forefront; the problem is that, in its implementation, it is undermining it.

[Lord Hannay of Chiswick (CB)]

The Advocate-General has just given the totally conventional response about the Government not publishing their legal advice. In that case, why did the Government publish a four-page document in the summer setting out their legal advice?

[Lord Stewart of Dirleton (Con)]

My Lords, the Government set out their position at the outset to assuage, hopefully, the concerns of Peers and Parliament generally about the steps which they intended to take. I do not intend to go beyond that on the Government’s legal advice.

I was going on to address the point raised by the noble Lord, Lord Pannick, and others—the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Ludford—about the matter of necessity. The noble Lord, Lord Pannick, paid me a restricted compliment earlier. May I respond in kind by saying that I am grateful to him for the wise, kindly, and friendly manner in which he has always engaged with me since I started in this House? I look forward to further engagements with him and the noble Lord, Lord Kerr of Kinlochard, and others on these points.

The noble Lord I think was the first to pose the question, how would it be possible for the Government to depend on the doctrine of necessity when the Government have put their signature, have become a party, to the protocol, having negotiated it? Do those facts, of themselves, prevent the Government from relying on this? Because, as the noble Lord said, the doctrine of necessity cannot be relied on by a party which by its conduct has caused the problem. The noble Lord, Lord Bew, nods his head.

[Lord Pannick (CB)]

Or contributed.

[Lord Stewart of Dirleton (Con)]

Or contributed. Where I and the Government differ from the noble Lord is in this regard: we signed the protocol in good faith, we negotiated in good faith, but we are entitled also to look beyond the terms to the manner in which the protocol has been implemented and interpreted by the other side. In relation to that point, it is not a—

[Lord Pannick (CB)]

I am very grateful and I apologise for speaking so often, but this is Committee. If the Government’s belief is that the other side has not faithfully performed its obligations on the protocol, the protocol itself provides a mechanism by which that dispute can be resolved. The means provided is through the Court of Justice. I entirely understand why politically the Government do not like that remedy, but that is what we agreed.

[Lord Stewart of Dirleton (Con)]

To pick up the noble Lord’s point about the CJEU, the Belfast/Good Friday agreement is based, as we have heard, on the consent of both communities. It is part of a package, along with VAT and state aid rules, that causes unionists to feel less connected and less part of the United Kingdom. As your Lordships have heard in the course of the debate today, all unionist parties cited the CJEU as a key driver of a major democratic deficit. This is not a hypothetical issue; there have been seven separate infraction proceedings brought against the United Kingdom by the EU, covering issues such as value-added tax, excise, pet passports and parcels. We consider it inappropriate for the CJEU to be the final arbiter.

[Baroness McIntosh of Pickering (Con)]

I listened very carefully to what my noble and learned friend said, but the situation remains the same today, as the noble Lord, Lord Pannick, set out, as it was on the day that the Government claimed to have an “oven-ready deal”—I think those were the words—of which the protocol was an integral part. It is a cornerstone of the EU Withdrawal Agreement and, as the noble Lord, Lord Pannick, has stated, the remedy is in the protocol. So it is very unfair for the Members on the DUP Benches to be put in this position, but that is the position that was sold to both Houses.

[Lord Stewart of Dirleton (Con)]

My Lords, I beg respectfully to differ from my noble friend. The situation is not the same, because in the intervening period between the announcements to which my noble friend refers, and today, these problems about implementation have arisen; so the situation is not the same, and we simply cannot go back to reference the text of the argument.

[Baroness Chapman of Darlington (Lab)]

I have noticed the emphasis that the Minister has placed twice now on the word “implementation”, and I want to understand precisely where he views the problems with the protocol to lie now, because the Bill that he is supporting deals with the problems in a far more fundamental way than just looking at implementation and practicalities.

[Lord Stewart of Dirleton (Con)]

I am referring to implementation in terms of the manner in which these problems have arisen: the problems that have led to the difficulties with which the House is currently grappling, such as the suspension of institutions and the democratic deficit. I think the noble Baroness wishes to speak.

[Baroness Chapman of Darlington (Lab)]

I was muttering to myself, actually. Those are not problems of implementation of the protocol, those are issues that underlie the protocol; I am just trying to understand exactly what the Government see as the problem, because unless we do that in a fuller way than he is perhaps leading towards, we will not have a clear idea of what the Government are recommending the solution to be.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Baroness for her intervention, and I hope I will be able to, if not clear it up directly, refer the noble Baroness to the statements in the Order Paper. Perhaps I may say, in relation to the amendments with which we are currently engaged in relation to publication of the Government’s legal advice, that it may well be—and I think I made the same observation to my noble friend Lady Altmann—that these points might be dealt with better in relation to later groups which will address the question of the protocol and the amendments which the Government propose. I give way to the noble Lord.

[Lord Purvis of Tweed (LD)]

The noble and learned Lord has just told the Committee that the problem is with the implementation of the protocol. In his Second Reading winding speech he said that

“the problem lies in the protocol and not in its application.”—[Official Report, 11/10/22; col. 768.]

So, which is it?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, the problems with which we are grappling lie in the implementation of the protocol: I think the protocol has given a basis upon which these implementations may be made.

[Lord Purvis of Tweed (LD)]

Is this the noble and learned Lord correcting the record now from his Second Reading speech? I am quoting directly from Hansard that

“the problem lies in the protocol and not in its application.”—[Official Report, 11/10/22; col. 768.]

But he is telling the Committee today that it is in its application.

[Lord Stewart of Dirleton (Con)]

The noble Lord promised at the very outset of Committee, when he opened the earlier debate, that this inconsistency would be pounced upon, and he has returned to the point. My answer to him is that the implementation has given rise to the difficulties we now face, and that the protocol has permitted that implementation to take place.

[Baroness Altmann (Con)]

Could I ask my noble and learned friend to amplify what it is in the way that the protocol is working that was not anticipated? The role of the European court was always enshrined in the protocol, so I am struggling to understand what has suddenly changed to require this unilateral action to get rid of the CJEU, rather than using the mechanisms within the protocol.

[Lord Stewart of Dirleton (Con)]

My Lords, the diversion of trade and the effects upon the confidence of the unionist community in their membership of the United Kingdom have given rise to the difficulties we now face.

As I was saying before dealing with that spate of interruptions from noble Lords, it has become apparent that one of the communities—I remind your Lordships of the importance of the concept of consent in the Belfast/Good Friday agreement—has recognised that the CJEU is a part of the problem, as unionist parties have cited the CJEU as a key driver of a major democratic deficit. The Bill therefore seeks to ensure that Great Britain and Northern Ireland courts will have the final say over the laws that affect their citizens. It will permit a referral mechanism to the Court of Justice of the European Union, recognising legitimate EU interests and supporting north-south trade. We consider this to be a reasonable step which places the matter in line with normal dispute resolution provisions in international treaties.

[Lord Purvis of Tweed (LD)]

On that point, would the Minister be able to cite any other agreement the UK has signed where the dispute resolution mechanism affords the UK the ability to bring forward unilateral legislative solutions which are contrary to the agreement we had signed? What other examples can he cite?

[Lord Stewart of Dirleton (Con)]

My Lords, that question brings me on to dealing with the terms of the argument in relation to Article 16, about which we have had some submissions from the noble Lord himself, the noble and learned Lord, Lord Judge, the noble Lord, Lord Dodds of Duncairn, and the noble Baroness, Lady Ludford. Triggering Article 16 would not solve the problems of the protocol. It would only treat some of the symptoms, without fixing the root causes of those problems. It has inherent limitations in terms of its scope. Such safeguard measures might address trade frictions but not the broader identified impacts of the protocol such as I have been founding upon. The legislation that the Government propose provides the comprehensive and durable solution required and certainty for businesses and the people of Northern Ireland.

[Lord Cormack (Con)]

I must confess that I am very troubled and puzzled. If the Government have decided that this is what they are going to do, that is incompatible with having proper negotiations. How can my noble and learned friend explain that?

[Lord Stewart of Dirleton (Con)]

My Lords, as your Lordships have heard from my noble friend Lord Ahmad of Wimbledon and the noble Lord, Lord Bew, this is not identified as an inconsistency by our counterparties in relation to this matter.

The Government’s legal position is that our legislation is necessary and justified, and we make that assertion without prejudice to our position in relation to Article 16—again, as your Lordships heard from my noble friend Lord Ahmad of Wimbledon earlier. Article 16 is expressly limited. It is the Government’s view that it would not solve all the societal and political issues identified, including those identified today in some of your Lordships’ contributions to the earlier debate, whereas the Bill provides a comprehensive solution to those problems.

The noble Lord, Lord Campbell of Pittenweem—who in another context is my learned friend—referred me to the examples I cited when winding up at Second Reading of cases which set out the doctrine of necessity. The Canadian fisheries case concerned the Convention on Cooperation in the Northwest Atlantic Fisheries, which was a treaty. The Hungary-Slovakia case to which I also referred was a dispute about an agreement between the two parties for navigation of a river and the construction of infrastructure. In any event, I think the answer to his point is that the concept of necessity and its application in these circumstances is admitted within the articles of state responsibility.

[Lord Purvis of Tweed (LD)]

I will refer to this in the next group, but the Minister might want to add a little extra with regards to the case he cited: the International Court of Justice threw out the Hungarian case on invocation of necessity. It said that

“Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it about.”

I think there are some similarities in what we are hearing now, but could the Minister confirm that the ICJ did not accept Hungary’s case?

[Lord Stewart of Dirleton (Con)]

My Lords, in any case, there will be parties that are disappointed to a greater extent than others. The point is that one party proposes. That party does not determine the question; the determination of that question falls to someone else.

In relation to the point made by my noble friend Lady Altmann, our preference for negotiation clearly remains. As the Committee has heard, that negotiation is not interrupted or affected by the Bill moving through your Lordships’ House.

[Baroness Ludford (LD)]

My Lords, the Minister said that the four-page document we saw in July was designed to assuage our concern. Unfortunately, it did not. In one sense, I am impressed that the Government are prepared to receive criticism of their legal assertions in that document from people of the stature of Sir Jonathan Jones, Professor Mark Elliott, the noble Lord, Lord Pannick, and my noble friend Lord Campbell of Pittenweem, and still say, “Well, the four-page document adequately sets out our case”. I am sort of impressed but also surprised that the Government are not provoked by the level and depth of that criticism to make a bit more of an effort.

One of my noble friends—I cannot remember which—highlighted the difference between the assertion made at Second Reading that the problem lies in the protocol and the emphasis this evening that the problem lies in its implementation. That would imply that there is no need to rip up the protocol, which is what the Bill is designed to achieve, and that negotiations or dispute resolution up to the ECJ would fit the bill as the problem is in the implementation. The Government keep switching their ground depending on, it seems to me, who most recently raised a point as to whether the real problem is the protocol or its implementation. The Minister said that invoking Article 16 would deal only with the symptoms not the protocol, but surely “symptoms” are the same thing as “implementation” in this context. Again, there is inconsistency here over whether the problem lies with the text of the protocol or its implementation.

The Minister rather confused me with his references to the CJEU being part of the problem. Again, that was known three years ago. The Government agreed and signed up to what the EU would not have otherwise agreed to—Northern Ireland being effectively part of the single market—without the CJEU being the ultimate arbiter of legal disputes. However, I have frankly never taken the point from the right that court adjudication creates a democratic deficit. We do not expect courts to be democratic. They are part of a liberal democracy but are not themselves supposed to be an epicentre of democracy. They rule on the application of the law.

I do not think that it says much for the Government’s knowledge, understanding, foresight or policies that they are now seeking to diverge from the single market, not least in the Bill—I cannot remember its full title; it is something like the revocation of retained law Bill, otherwise known as the Brexit freedoms Bill—that had its Second Reading in the other place today; I do not know whether that is still going on. Diverging from single market legislation makes the implementation of the protocol more difficult so there does not seem to be any coherence in the Government’s policy. They criticise the implementation of the protocol but are going to make that implementation more problematic; indeed, the noble Baroness, Lady Altmann, talked about how maintenance of regulatory alignment would help east-west trade. A UK return to the single market, if not the EU, would do so even more.

Imprisonment for Public Protection Scheme

Lord Stewart of Dirleton Excerpts

Thursday 13th October 2022 Lords Chamber

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

My Lords, I join many of today’s speakers by thanking the noble Baroness, Lady Hamwee, for securing this important debate. I say how glad I am to see her in her place and how much I appreciated her succinct contribution.

I also thank the noble Baroness, Lady Burt, for opening the debate and laying down so many challenges for me to meet in the form of questions. In the spirit of good will and co-operation across the whole House, let me begin by providing her with a specific answer to one of the questions she asked. The report by Professor Moran on the offender personality disorder pathway was published today on GOV.UK. With that expression of delight from noble Lords, I should perhaps sit down, but I have more to say in response to the many points taken up by your Lordships.

It is indeed the case that the IPP sentence continues to generate enormous interest, concern and challenge in this House. The Ministry of Justice has certainly felt the strength of feeling from many noble Lords in previous debates on this matter. I acknowledge the work of the probation service, to which the noble Lord, Lord Ponsonby of Shulbrede, referred a moment ago, in playing its part in addressing the difficult problems that have emerged as a result of this piece of legislation.

As noble Lords will know, the IPP sentence became available for the courts to use from April 2005. When the sentence was abolished in December 2012, there were more than 6,000 offenders in prison serving an IPP sentence. Since that time, the Parole Board has released a substantial number of those prisoners on licence, although I assure the House that we recognise that there is still much more to be done.

On 30 June this year, there were 1,492 offenders in prison serving the IPP sentence who had never been released, and 1,434 offenders serving it following recall. In light of these numbers, I should here reaffirm the Government’s commitment, through the work of His Majesty’s Prison and Probation Service, to support: first, those serving the IPP sentence in prison, to reduce their risk to the point where the Parole Board, in the exercise of its independent function and discretion, judges that they are safe to release; and secondly, those serving the IPP sentence in the community, to progress to the point where the Parole Board, in the exercise of that same discretion, judges that their IPP sentence may safely be terminated. Our commitment will be delivered through the HMPPS action plan.

As your Lordships will be aware, it has long been the Government’s intention to review and refresh the action plan once the Justice Select Committee published its report following the IPP inquiry. We welcome the fact that, after a year-long inquiry, collation of the evidence base to which the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Thomas of Cwmgiedd, referred, was published on 28 September. That means that we can now review thoroughly this important collation of evidence and recommendations in the context of consideration of our next steps. However, I emphasise that the Government have not stood idly by, awaiting the publication of this report. Work has been done to ameliorate matters for persons serving such sentences, as I will advise your Lordships.

As your Lordships have noted, the Justice Committee has laid out a clear recommendation for a new IPP action plan and a new approach to its oversight. The committee wants focused, actionable guidance to ensure that the plan has a clear strategic priority and ownership, and for HMPPS to deliver more in terms of fixed timeframes and performance measures. The Government welcome the publication of the committee’s report and view it as a real opportunity to take stock and identify areas for possible improvement. As I have observed, HMPPS has been working very diligently, over a considerable period, to deliver improved prospects for those serving IPP sentences. However, we must always be responsive to new information and take further steps to ensure that this work is robust, structured, and properly directed.

A full government response will be provided to the Justice Committee by 28 November this year, with an updated IPP action plan to follow. I emphasise that 28 November is the final date. My noble and learned friend Lord Bellamy, the Minister with responsibility in this area, will be very much looking forward to sharing and discussing progress on this with your Lordships over the coming months.

The noble and learned Lord, Lord Thomas of Cwmgiedd, in his powerful submission, acknowledged the importance of evidence, and of an evidence base on which to work. I emphasise that such an evidence base, together with the facts and statistics already available to the Government, must be subject to proper interpretation and analysis. However, I hope that this will not amount to what my noble and learned friend Lord Garnier potentially styled it as procrastination, or to equivocation.

While our focus is now on revising the action plan to address the Committee’s recommendations, it is important in a debate such as this to give a short overview of what has been delivered and achieved thus far in support of bettering the prospects of those serving an IPP sentence and in permitting them to progress through the system. Indeed, many of the improvements delivered in recent years will remain key features of the IPP action plan, as they have been shown to be effective in supporting progression.

In September 2016, a joint HMPPS and Parole Board IPP action plan was introduced, overseen by a board of senior representatives from prisons, probation, the Parole Board, health services and psychology services. I place particular emphasis on that latter component because of the profound concern that your Lordships have exhibited in relation to the mental health of persons imprisoned in this way. This early version focused significantly on improving the processes associated with the delivery of an efficient and timely parole process. At the time, there was a significant backlog of oral hearings which had a particular bearing on the prospects for IPP prisoners to secure progression, but, through the work outlined in the first action plan, the efficient flow and handling of cases improved significantly and that backlog was eliminated.

Once the parole process was operating efficiently, focus shifted largely to what HMPPS could and would do to support IPP prisoners, so that they could embark on their parole reviews with realistic hopes of showing the Parole Board that the statutory release test was met in their case. Then, as in each year from 2016, the Parole Board released hundreds from their IPP sentence for the first time and, as more were being managed in the community on an IPP licence, HMPPS began to explore what was needed to support those eligible to apply for the supervision requirements of their IPP licence to be suspended and, later, to apply for their IPP licence to be terminated altogether.

I now turn to the specific achievements of the IPP action plan thus far. I start with the case review initiative delivered by psychology services. These are comprehensive reviews, vital to identifying the most appropriate pathway for individuals, especially those with complex needs and challenging presentations, which the significant majority of those who remain in custody have. However, it is important to note that the case reviews are not a ticket to release but an absolutely key step to help practitioners home in on the best course of action to enable that individual to take progressive steps.

The department considers it impressive that almost every post-tariff unreleased IPP prisoner currently in prison has now received such a case review. The initiative has delivered well; between July 2016 and April 2022, 1,877 thorough reviews were completed, with many individuals going on from this platform to complete the work required to secure their next progressive step. In fact, 552 prisoners in this cohort have subsequently been released and a further 537 secured a progressive move to open conditions. It is clear that these reviews have, in conjunction with prison and community offender managers, led to improved individual pathways to progression, notwithstanding the fact that many are still struggling to progress due to their challenging behaviour, complex needs and the risks that they pose. Such cases are revisited through an update to the original case review and further multidisciplinary discussions of next steps.

Another key success of the action plan is the planning and implementation of three specialist progression regimes, which brings the total of such regimes to four. They collectively offer 385 places. These regimes, at His Majesty’s Prisons Warren Hill, Erlestoke, Humber and Buckley Hall, operate in closed, adult male prisons and provide opportunities for prisoners to gain a fuller understanding of their risks and problematic behaviours, and support to address them. Progression regimes aim to reintroduce the responsibilities, tasks and routines associated with daily life in the community, to test prisoners’ readiness to respond appropriately to trust where it is placed in them, and to encourage the active pursuit of activities and relationships that support rehabilitation. The system and the Government are conscious of the pressures posed on persons who have spent a long time incarcerated on returning to ordinary life. Although not all IPP prisoners would be ready to move to a progression regime due to the unique regime offering increased freedoms and responsibilities, it has proved an important opportunity for many to secure future release, and will be for many more who arrive there in the future.

Also worthy of note is the delivery of the IPP progression panels initiative, led by the probation service, which supports progression for those serving the IPP sentence in prison and in the community. These panels offer a multidisciplinary approach to risk management and progression, enabling cases which may have stalled to be put back on the right progression pathway. The panels are informed by the psychology services’ case reviews and are an important part of the wider toolkit to improve progression of IPP offenders. These are used prior to release but mainly following release to enable the effective management of individuals while on licence in the community. To date, over 6,600 IPP progression panels have been held across community and custodial settings.

The final success that I would like to highlight today to your Lordships is the addition to the Police, Crime, Sentencing and Courts Act earlier this year which requires the Secretary of State to automatically refer every eligible IPP offender to the Parole Board for consideration of licence termination. This takes effect once 10 years have elapsed since their first release and then annually thereafter. I note that this period is one which is challenged by the report of the Joint Select Committee, and the department looks forward to engaging with that matter in due course. This is something that your Lordships’ House certainly played an important part in delivering.

I join others in acknowledging the work and approach of the noble Lord, Lord Blunkett, in relation to consideration of the impact, value and merit of the IPP sentence. I think it was my noble and learned friend Lord Garnier, in particular, who made mention of that, but others did as well.

This amendment built further on what was previously delivered through the IPP action plan, which was to amend policy to seek proactively to ensure all eligible cases for licence termination made application to the Parole Board. Every eligible case will be considered by the Parole Board and, where successful, will lead to the IPP licence, and IPP sentence as a whole, being brought to a definitive end.

I am aware that many of your Lordships considered that this change did not go far enough and have pushed for a reduction on the period before individuals are eligible for consideration to have their IPP licences terminated. That featured, as I say, in the recommendations of the Joint Select Committee, although its primary recommendation has sought to go much further: to set up a time-limited expert committee, as your Lordships have heard, to advise on the practical implementation of a resentencing exercise, which the Lord Chancellor and Secretary of State for Justice could then consider. As stated previously, all recommendations within the report will be considered thoroughly. However, I am unable to comment on the Government’s views on the report’s recommendations until that formal response is available.

Although the successes coming from the IPP action plan, which I have sought to outline, are certainly encouraging, it is crucial at the same time to recognise the enormous challenges faced in working with this cohort to best effect, and the challenges that a refreshed IPP action plan will need to tackle. As the number of IPP prisoners who have never been released continues to decrease, the proportion of those who remain in prison who committed more serious offences and whose cases are particularly complex continues to grow. These prisoners, when not being released by the Parole Board, are still assessed to pose a high risk of committing further violent or sexual offences. These risks and associated behaviours must be addressed, and that has to be kept in mind when we consider IPP sentences because there is a risk-management component involved in that. It is not a simple task.

The Government’s priority continues to be to protect the public, but we remain committed fully to doing all that we can to support the safe progression of those serving IPP sentences.

[Lord Moylan (Con)]

My Lords, at the risk of prolonging my noble friend’s speech—I sense that he might be sitting down shortly—what can he say in response to my question about what he will do to secure a meeting with the families and the Secretary of State on 19 October, or as soon after that as possible?

[Lord Stewart of Dirleton (Con)]

I can give my noble friend an assurance that there will be engagement with the bodies to which he referred in his submission.

As your Lordships recognise, it is a mark of the health of a society that it extends compassion to victims of crime as well as to those who find themselves in custody as a result of having committed it. The proposals that the Government will bring forward once we have considered the terms of the JSC report will, I hope, assist that and permit people to reform and to enter into society to lead as full and useful a life as they may.

Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

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

My Lords, I begin by expressing my appreciation for the very large number of thoughtful and informed contributions we have heard during this debate. It has been an honour to have heard it and now to become a part of it. It has grappled with not only the grave political and constitutional matters before us but has cited the Marquess of Salisbury, by my noble friend Lady Nicholson, Montesquieu and The Spirit of the Laws by the noble Lord, Lord Morrow, Shakespeare’s “The Merchant of Venice” by my noble friend Lord Moylan and that peerless advocate and exemplary parliamentarian Sir Edward Carson by the noble Baroness, Lady Hoey. The debate also heard the expression “Piss off” used by the noble Lord, Lord Russell of Liverpool, which I had perhaps not anticipated hearing in a debate in your Lordships’ House.

On behalf of the whole House, I am sure, I echo the words of the noble Lord, Lord Rogan, and others on the loss to our counsels constituted by the death of Lord Trimble. I also echo his comments on the loss to Lord Trimble’s community, the whole of Northern Ireland and his family.

Before I turn to the points raised by various noble Lords, I will briefly restate the reasons for introducing the Bill. The Northern Ireland protocol was agreed with the best of intentions, to ensure that the Belfast/Good Friday agreement was protected in all its dimensions as the United Kingdom left the European Union. The departure of the United Kingdom from the European Union is, as the noble Baroness, Lady Fox of Buckley, put it so trenchantly, a UK matter. It is not to be balkanised in terms of how it played out in London, Northern Ireland, Scotland or Wales. It is a United Kingdom matter.

But in its practical operation, the protocol is causing practical problems for people and businesses in Northern Ireland, including disruption and diversion to east-west trade. That disruption is present in the rest of the United Kingdom and it is causing significant costs and bureaucracy for businesses and traders.

Moreover, political life in Northern Ireland is, as your Lordships have heard on numerous occasions, built on compromise and power sharing across communities. However, as noble Lords have also heard, the protocol does not have the support of all communities in Northern Ireland. The noble Lord, Lord Dodds of Duncairn, was but the first to explore this point. As a result, we are seeing political and social stress in Northern Ireland, including the non-functioning of the Northern Ireland Executive and Assembly. It is clear that the protocol is putting strain on the delicate balance inherent in the Belfast/Good Friday agreement.

It remains the Government’s preference to reach a negotiated agreement on the protocol. I could not associate myself more with the comments from all sides of your Lordships’ House—the noble Lords, Lord Triesman and Lord Bach, on the Benches opposite, the noble Baroness, Lady Wheatcroft, and my noble friend Lord Tugendhat—on the importance of negotiation and the hopes the Government have that it will ultimately bear fruit. My right honourable friend the Foreign Secretary has reiterated this. He and Vice-President Maroš Šefčovič have agreed that officials should meet to discuss technical solutions. The Bill contains provisions to implement any future negotiated agreement with the European Union. I can give an assurance at this stage to my noble friend Lord Frost that we are clear that negotiations must be able to address the full range of serious issues caused by the protocol. The Bill is set up to enable us to do precisely that.

In answer to a point raised quite early in the debate by the noble Lord, Lord Ricketts, our EU partners and friends are aware of this Bill. They are aware that negotiations continue and recognise that there are problems to resolve.

My noble friend Lord Forsyth of Drumlean spoke early in the debate about the manner in which the protocol has been operated. I will revert to that point when I discuss, at a level I think appropriate to Second Reading, the implications of the Government’s stance for international law. However, I must stress to your Lordships’ House that the problems created by the protocol are urgent and require swift action. The Taoiseach, the Irish Premier, said publicly last week that the protocol as it was originally designed was a little too strict. These problems are of long standing and we now seek to address them. But while we engage in dialogue with the European Union, we must also ensure that we have covered all bases and that the United Kingdom Government have the ability to implement durable solutions in any scenario.

I now propose to turn to some of the specific themes and questions raised in this evening’s debate. I do that against the undertaking that if I should fail to refer specifically to the contributions of any of your Lordships or fail to give consideration to any of your Lordships’ arguments proper to this stage of Second Reading, I am happy to engage with your Lordships in writing or in person in the corridors of this place, or for that matter, elsewhere.

The matter that featured most strongly in your Lordships’ deliberations today arose out of the matter of international law and the argument from necessity. The Government have already published a statement of their legal position on the Bill and their position is that it is lawful and necessary. The noble Lord, Lord Birt, from the Cross Benches and my noble friend Lord Kirkhope of Harrogate seemed to suggest to your Lordships that the voice of the legal profession was as one in saying that this was not the case. That is not so. The Government have a worked-out position in international law and there is no reason why we should not take it forward.

The United Kingdom exercised its sovereign choice to leave the European Union single market and customs union. I discern that that course was not universally approved by your Lordships’ House. But the peril that has emerged was not inherent in the protocol’s provision. As to the universal opposition, which some of the contributors to this debate seemed to throw up, it is in the nature of law that it is often adversarial. It is in the nature of law that parties will have different approaches, just as it is in the nature of sincere friendship that sincere friends will often disagree, even on the most fundamental matters.

The strain that the arrangements under the protocol are placing on political institutions in Northern Ireland, and more generally on socio-political conditions, will leave the Government with no option but to take action if they cannot reach a negotiated solution with the European Union.

I listened with great interest to the comments as to law made not only by the many distinguished lawyers on the Benches of this place but from lay people concerned about the implications of the step that the Government were proposing to take. Opening for the Opposition from the Front Bench, the noble Baroness, Lady Chapman, began more correctly—or less wrongly—by saying that it was “likely” that this would amount to a breach of international law. Then she recovered the party line and said that it did breach international law. The curiosity was that I think that the lay people contributing to this debate about international law were, in fact, nearer to the truth than distinguished commentators such as the noble Lord, Lord Pannick, or my noble friend Lord Howard of Lympne, because the fact of the matter is that it is not possible—

[Lord Purvis of Tweed (LD)]

I do not want that honour.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord and will revert to him in due course. It is not possible to equiparate international law with domestic law. There is simply not enough of it and it is too dependent on facts and circumstances which will not apply from case to case to come up with a precedent which would allow noble Lords who have spoken in these terms to speak with such certainty.

Should I address the noble Lord, Lord Purvis of Tweed, at this stage? At an early stage in these proceedings, he spoke about the nature of the plea to necessity. I say again that it is very different from the interpretation of a domestic statute. Of course in international law there are similarities with domestic legislation, and of course in international law, often being a matter of paction, there are similarities with the law of contract. But it cannot be equiparated with, to use a metaphor that emerged from the Cross Benches, a contract for the sale of sausages. It is too complex and too fact-specific. That point was continued by the noble Baroness, Lady Suttie, my noble friends Lady McIntosh of Pickering, Lady Altmann and Lord Kirkhope of Harrogate, my noble and learned friend Lord Garnier—I am sure that I have missed others out; as I said, my undertaking is to engage with your Lordships to assist them in moving this forward—and, I decipher from my scrawl, the noble Lord, Lord McDonald of Salford, speaking from the Cross Benches. The assertion that the Government’s position breaches international law is too bold and lacking in nuance. I submit that we are entitled to proceed on the basis that we anticipate that the protocol will be operated in a manner that reflects the unique and serious circumstances against which it was drawn up.

The doctrine of necessity was approached by the noble Baroness, Lady Crawley, and my noble friend Lord Hannay of Chiswick in particular, who equiparated—if I misattribute this to my noble friend, I apologise to him and will happily correct it—invocation of the doctrine of necessity with the law of President Putin. Far from it: there is authority for the existence of a defence of necessity dating back at least to the early 19th century. It was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube. It formed part of the International Law Commission’s articles on state responsibility, drawn up in 2001, as the Government’s statement on their legal position notes. In 1995, the Government of Canada justified steps taken to protect the Grand Banks fisheries on the basis that it was necessary to do so. If fisheries in the Atlantic are important, how much more so is the extension of democratic rights across the whole of this United Kingdom?

Invoking the doctrine of necessity does not repudiate international law or the international rules-based order. It is part of the international rules-based order. The noble Baroness, Lady Kennedy of The Shaws, my noble and learned friend Lord Clarke of Nottingham, the noble Lord, Lord Bach, and my noble friend Lord Tugendhat stated that the Government were undermining the rule of law and that this constituted a flagrant breach of the rule of law. Again, by invoking the doctrine of necessity, we operate within the framework of international law and—

[Lord Howard of Lympne (Con)]

Is not my noble and learned friend rather missing the point? None of us has suggested that the doctrine of necessity plays no part in international law. What we are saying is that it is not justified by the Government’s approach in this particular instance.

[Lord Stewart of Dirleton (Con)]

I respond to my noble friend by saying that the assertions that it breaches international law simply cannot be determined at this point because it is a matter of exploring the complex background of facts and circumstances, including the manner in which the protocol has been operated.

[Lord Thomas of Gresford (LD)]

Can the Minister define in a few words what the necessity is in this particular instance?

[Lord Stewart of Dirleton (Con)]

My Lords, I think it would be wrong of me at this stage in the Second Reading to engage in a deeper debate. I refer the noble Lord to the terms of the legal statement issued by the Government.

On the diminution of rights which were raised among your Lordships, I return to the point raised by my noble friend Lord Moylan and indeed by other Members of your Lordships’ House from Northern Ireland: what are we to say of the diminution of rights which strips from citizens of this country the right to make laws? Must we not look to that? At present, the circumstances of Northern Ireland strip our fellow countrymen of that right.

[Baroness Altmann (Con)]

My Lords—

[Lord Stewart of Dirleton (Con)]

I will not give way at this stage.

An argument which was deployed by some of your Lordships, beginning with the noble Lord, Lord Ricketts, and continued by my noble friend Lord Northbrook, was that by these steps the Government are damaging the trust in the United Kingdom among its international partners. There is no reason why this legislation should damage trust among our international partners. The Government want to move past issues with the protocol and focus on the key global challenges, such as those emanating from the current Government of Russia. As regards this country’s standing in the world at large, people furth of this country will look to the unhesitating support offered by this country to a democratic state imperilled by an aggressive neighbour and take that as the badge and measure of this country’s approach.

[Baroness O’Loan (CB)]

My Lords—

[Lord Stewart of Dirleton (Con)]

My Lords, again, with the utmost respect, I decline to give way to the noble Baroness. She has my assurance that I will engage with her.

[Lord Purvis of Tweed (LD)]

The point is to answer noble Lords.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord; I will not give way.

It remains the Government’s preference to reach a negotiated agreement on the protocol, and further discussions are now under way with our European Union counterparts with the aim of identifying shared solutions. I can give my noble friend Lady McIntosh of Pickering repeated assurance of the importance of negotiation. We will continue to work closely with the European Union on the crisis of Ukraine, as we will with the United States and with all friendly powers and democracies throughout the world. We have always said that we want to fix the problems created by the protocol, in part so that we can focus our full collective energy on global challenges such as these.

The point was taken up at various points during the debate that the Bill threatens Northern Ireland access to Ireland and to the wider European Union single market. I stand before your Lordships in place of my noble friend Lord Caine, who I feel is far better equipped to answer these questions, drawing on his extensive experience of affairs in Northern Ireland. Again, he will undertake to engage with noble Lords on that point. Any perception of risk posed to the EU single market can be managed through market surveillance activities delivered by relevant United Kingdom bodies which will continue to prevent, deter and remove non-compliant and unsafe activity to protect the consumers of both the United Kingdom and EU markets. Market surveillance will follow the risk-based and intelligence-led approach as it does at present. As we have said all long, our preference is for a negotiated solution, and we stand ready to discuss appropriate assurances with the European Union.

The noble Baronesses, Lady Ritchie of Downpatrick, Lady Doocey and Lady Ludford, and the noble Lord, Lord Browne of Belmont, raised matters specific to agribusiness and dairy farming in particular. Again, I offer the House assurance that negotiations continue.

I am grateful to my noble friend Lord Frost for his account of the current economic situation and his summary of the historical situation in 2009 which my noble friend Lord Hannan of Kingsclere joined with his customary brio and, in the process, released a cat among the Liberal Democrat pigeons. I am also grateful to the noble Baroness, Lady Fox, whom I took to adopt the historical summary which my noble friend Lord Frost advanced.

I come next to the noble Lord, Lord Purvis of Tweed, who again very early in the debate raised the important point of an impact assessment. As the noble Lord pointed out, the Bill does not have an impact assessment. The full details of the new regime will be set out in regulations alongside and under the Bill, including economic impacts where appropriate.

Since the Bill was introduced, we have consulted extensively with businesses and other key shareholders on the underlying details of the regime to ensure that it is as smooth and as operable as possible. The Government are getting on with that task now.

The noble Lord, Lord Russell of Liverpool, seemed to invoke the concept of historical inevitability in his contribution towards the end of the debate. I am no Marxist but I am by no means clear that his exercise in foresight in relation to society in Northern Ireland will prove to be accurate.

A matter of grave and, if I may say, fully appropriate interest to your Lordships is that of the breadth of the Henry VIII powers. The noble Lord, Lord Bruce of Bennachie, my noble friend Lord Northbrook, the noble Baroness, Lady Ritchie of Downpatrick, once again, my noble and learned friend Lord Garnier, and the noble Baroness, Lady Meacher, in particular, raised these matters, and I apologise to other noble Lords whom I have not mentioned by name.

The Bill provides specific powers to make new law where we are disapplying the EU regime and where such law is appropriate to make the Bill’s regime work. These powers are restricted. They can be used only in connection with certain provisions and subject matter of the protocol, for example changing valued added tax rules in Northern Ireland.

It is important to emphasise that we are engaged in negotiations. We are not, as the noble Lord, Lord Kerr of Kinlochard, said, engaging in blackmail; nor are negotiations, as the noble Lord, Lord Thomas of Gresford, said, engaged in attempting to bully the European Union; and nor, as my noble friend Lady Altmann suggested, have we by this proposal become an elected dictatorship.

These provisions are necessary. They allow the Government to act as quickly as possible to deliver new policy arrangements, for example to introduce the green and red lane for traders. Since the Bill was introduced in June this year, the Government have consulted extensively. There have been over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators.

I am being warned once again: noble Lords will doubtless be glad to see the back of me. The steps which we are taking are necessary to reflect the unique and dynamic situation in which the Bill passed in the other place.

In conclusion—

[Noble Lords]

Hear hear.

[Lord Stewart of Dirleton (Con)]

The Government have not triggered Article 16—from early in the debate, I note my noble friend Lord Howard of Lympne. The position is that it would not solve the radical, fundamental problems with the protocol. It would treat only some symptoms without fixing those root causes. As my noble friend Lord Moylan explained to your Lordships, the problem lies in the protocol and not in its application.

[Noble Lords]

Well done.

[Lord Stewart of Dirleton (Con)]

It would appear that I am losing the House’s patience.

The Bill allows the Government to implement lasting and durable solutions to the existing problems with the Northern Ireland protocol. While we remain committed to exploring shared solutions with the European Union, it is critical that we retain the ability to take action on the very real and urgent problems inherent in the protocol. I hope that noble Lords will recognise this and act in the best interests of the people of Northern Ireland by voting with the Government for the Bill. I am obliged to your Lordships.

Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

Tuesday 11th October 2022 Lords Chamber

Moved by

[Lord Stewart of Dirleton]

That the Bill be committed to a Committee of the Whole House.

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

My Lords, I beg to move.

Amendment to the Motion

Tabled by

Covid-19 Lockdown: Fixed Penalty Notices

Lord Stewart of Dirleton Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Strathcarron]

To ask Her Majesty’s Government what consideration they have given (1) to granting an amnesty to the 43 per cent of people who were issued with Fixed Penalty Notices (FPNs) during the COVID-19 lockdowns and who have not paid them, and (2) to refunding the remaining 57 per cent of people issued with FPNs who did pay them.

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

My Lords, the Government recognise that a proportionate law enforcement response was needed to get Covid-19 under control and get lives back to normal. Parliament agreed, and the Health Protection (Coronavirus, Restrictions) Regulations 2020 passed into law. While the majority followed the rules, it is right that those who put us most at risk by ignoring the rules faced appropriate penalties.

[Lord Strathcarron (Con)]

I thank the Minister for that reply. The police in England and Wales issued just under 119,000 Covid restriction lockdown fines. Most are well over a year old and 43% of them have not been paid and, let us face it, by now never will be paid. Part of the lockdowns’ collateral damage to all sectors has been the enormous courts backlog so, in the spirit of peace and reconciliation, will the Minister consider an amnesty for those who have not paid the fines and never will, and, in all fairness, a refund for those who have?

[Lord Stewart of Dirleton (Con)]

My Lords, I acknowledge the spirit in which my noble friend poses the Question, drawn perhaps out of his continuing interest in mediation as an alternative dispute resolution, but I make two points in response. First, consideration of an amnesty is not within the gift of the Home Office: police forces are independent of government. Secondly, funds ingathered under this scheme have already begun to be distributed among local authorities, hence the course for which he calls is not a feasible one.

[The Earl of Clancarty (CB)]

My Lords, I agree with an amnesty, but we seem to have gone from one extreme to the other, with a TUC survey that now finds 9% of employees showing Covid symptoms being forced to go to work. Does the Minister agree that anyone who tests positive or displays Covid symptoms should not be forced to go into work, and that no one should have to work alongside colleagues who are testing positive? Employees should, at the very least, be allowed that choice for the sake of their own health and the health of others.

[Lord Stewart of Dirleton (Con)]

My Lords, I am not sure how far it lies within the power of central government to make the orders for which the noble Earl calls. I will, if he wishes, correspond with him on just what the Government can do to prevent people being coerced into going into work against their will.

[The Lord Speaker (Lord McFall of Alcluith)]

The noble Baroness, Lady Brinton, is making a virtual contribution.

[Baroness Brinton (LD) [V]]

My Lords, the data in the National Police Chiefs’ Council report on fixed penalty notices issued in England and Wales shows the different approach to FPNs taken by forces. For example, Wiltshire and Gloucestershire issued less than half the number that Sussex and Norfolk issued. Will the reasons for those different rates be looked at, especially if persuasion was a more successful approach than penalties, so that lessons can be learned for the future?

[Lord Stewart of Dirleton (Con)]

My Lords, the circumstances on which the noble Baroness founds her question seem an inevitable consequence of the independence of police forces, to which I made reference earlier. The Home Office worked closely with the National Police Chiefs’ Council on the Government’s enforcement approach to the health crisis, with engagement at both ministerial and official level. Police forces were guided by instruction and advice from the College of Policing.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have so many questions. The Minister talked about appropriate penalties, but there were people who escaped appropriate penalties—for example, at No. 10. Is there going to be any retrospective view of this? The Government gave out some very confusing messages, which may partially explain the difference in police force enforcement.

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat my previous answer: it is the foundation of policing in England and Wales that individual forces are independent of central government and not accountable to central government for decisions they take. On the specific matter to which the noble Baroness refers, in relation to events down the street in Whitehall, I think that that has been investigated thoroughly by the Metropolitan Police.

[Baroness Doocey (LD)]

My Lords, fixed penalty notices were up to seven times more likely to be issued to black, Asian and ethnic-minority individuals, according to data produced by the Guardian. Will the Minister commit to ensuring that this disparity is investigated by the Covid-19 public inquiry?

[Lord Stewart of Dirleton (Con)]

My Lords, the disparities to which the noble Baroness draws my attention are a matter of concern for the Government, as well as for all right-thinking people around this House and beyond. I cannot speak for the independent inquiry that is being set up, but I assure her that the matter will be looked into by the Home Office.

[Baroness Foster of Oxton (Con)]

My Lords, first, I echo the points made by my noble friend Lord Strathcarron and I agree with what he said. I spoke recently in the coronavirus emergency measures debate, and it was clear throughout that a blur between guidance and regulation for lockdown restrictions had clearly come to pass. As has been said, thousands of people were issued with fines in one part of the country, while others never received even a warning for a similar offence. Does the Minister agree that the law of the land must apply across the board and cannot be determined by postcode, as that makes a mockery of the judicial system in this country?

[Lord Stewart of Dirleton (Con)]

My Lords, I regret that I cannot agree with my noble friend, for the reasons I have given. While a degree of support and advice was promulgated by the College of Policing and the Government, individual decisions were matters for individual police services across the country. That is a cornerstone of our policing in England and Wales and I think it merits support.

[Lord Coaker (Lab)]

My Lords, we should remind ourselves that the vast majority of the public conformed to the rules in the face of a pandemic; only a small minority did not and were issued with fixed penalty notices. Are the 43% who have not paid being actively pursued? What is the Government’s policy or advice to the police on that? It would be interesting to know whether all the people who have been issued with fixed penalty notices get a criminal record and what the consequences will be if people continue to refuse to pay the fines with which they have been issued.

[Lord Stewart of Dirleton (Con)]

The noble Lord asks a series of questions. If I may, I will revert to him on a couple of them. He asked about further enforcement steps by the Government; enforcement is in the hands of another arm’s-length body, the ACRO Criminal Records Office, so it is not a matter directly for the Government. He asked a very important question about whether people will receive criminal records for non-payment. Because the regulations were not marked as recordable, this will generally not be the case. In cases where people were brought on a complaint which specified an offence under these regulations and another offence which is recordable, the Covid offence may be recorded.

[Baroness Altmann (Con)]

My Lords, does my noble friend agree that it is important to uphold the rule of law? Many colleagues across the House will know that I disagreed fundamentally with the extent of the lockdowns and the extent to which they were prolonged—I would have preferred Sweden’s approach—but, given that it is the law and that we need trust in policing, the idea that someone who has broken the law at the time should suddenly be pardoned when others have paid the fine strikes me as strange. If the problem is in the courts, what other crimes will we turn a blind eye to just because the courts are overloaded?

[Lord Stewart of Dirleton (Con)]

My Lords, I respectfully agree with my noble friend. In any event, it is not within the power of the Home Office to grant an amnesty, as I said earlier. The funds ingathered from Covid are being returned to local authorities or the Government of Wales—the areas from which they were gathered—and applied to other purposes.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the figure of 119,000 was mentioned in relation to England and Wales. Can the Minister give us the equivalent number for Scotland? It would be interesting to compare Darlington and Cannock with Dirleton and Cumnock, to take two random places, and see whether people in one are more law-abiding than those in the other, or whether the police are more diligent in one than the other.

[Lord Stewart of Dirleton (Con)]

I agree with the noble Lord that that question is important and may yield interesting answers. I regret that the facts in relation to Dirleton and Cumnock do not fall within the ambit of the Home Office. He gestures to me; I will indeed write to him on the topic.