Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Consideration of Commons amendments
Tuesday 16th April 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, if I referred at an earlier stage to the Bill as opposed to the treaty, I apologise to your Lordships’ House. The treaty will not be ratified until such time and I am grateful to the noble and learned Lord.

As to the measures to which he refers, anent their adoption by the Rwandan Government, I think I touched on that in my speech. In any event, in treating with later amendments my noble friend Lord Sharpe of Epsom will go back in detail over the measures being carried out by Rwanda. In relation to the interaction between our state—His Majesty’s Government—and their state, again the House will hear later about the operation of the monitoring committee and the other bilateral bodies established to check on the ongoing safety of persons relocated to Rwanda.

[Lord Falconer of Thoroton (Lab)]

I apologise for pressing this, but the Minister is saying that the Government are going to make a judgment. Can he tell us how they will make that judgment?

[Lord Stewart of Dirleton (Con)]

My Lords, it will be by the implementation of these steps by the Government of Rwanda and the establishment of the very processes to which I have referred your Lordships.

It is not right or fair to allow our asylum and legal systems to be misused in the way they are being. The public rightly expect us to remove those who have entered illegally and do not have a right to be here. This Bill, which forms part of a wider programme to assess rising numbers in illegal migration, will enable us to deliver on that priority. To the point raised earlier by the noble Lord, Lord Coaker, I spoke from this Dispatch Box in some detail, as did my noble friend Lord Sharpe of Epsom, in relation to the interdiction of criminal operations elsewhere in the world, including the seizure of engines and equipment and the increased co-operation with the criminal authorities in France and elsewhere.

The country is entitled to expect of its Parliament that it takes urgent steps to address the problems which have concerned us during the passage of the Bill. The other place has now considered and rejected amendments similar to these on several occasions. It is time to restore the original Clause 1 to the Bill, with its clear statement of purpose. I respectfully submit that it is time to respect the clearly expressed view of the elected House by endorsing Motion A.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

Can we then take it from what the Minister has said that, if the Government, after taking appropriate legal advice that they choose to take, take the view that not to comply with a Rule 39 order would in the circumstances then prevailing put the Government in breach of international law, the Government would then comply with that order?

[Lord Stewart of Dirleton (Con)]

The point is that Rule 39 interim measures are not final judgments of the European Court of Human Rights, which do bind the United Kingdom. They are not binding on the United Kingdom domestic courts. When deciding whether to comply with an interim measure indicated by the Strasbourg court, due consideration will be given to the facts in the individual case and careful consideration of the United Kingdom’s international obligations.

As we heard from the noble and learned Lord, Lord Hope of Craighead, in opening, Amendment 38, tabled by the noble Baroness, Lady Chakrabarti, would remove Clause 5 and disapply Section 55 of the Illegal Migration Act. This would lead to a conflict between the duty to remove, established by the Illegal Migration Act, and the effect of an interim measure issued by the Strasbourg court, which in turn would create uncertainty as to which would prevail. Clause 4 includes a specific provision enabling the United Kingdom courts to grant an interim remedy preventing removal to Rwanda where they are satisfied that a person would face real, imminent and foreseeable risk of serious and irreversible harm. We have designed these measures to ensure that our courts are not out of step with the Strasbourg court.

As I have said already, there is no reason why the United Kingdom courts, which we would expect to be in possession of all the evidence and facts in the case when making such a decision, cannot be relied upon to reach their own decision rather than having regard to another court which may not have the most up-to-date information. I acknowledge that the noble and learned Lord, Lord Hope, is not pressing his amendment, and I ask the noble Lord, Lord Coaker, not to move his amendment.

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[Lord Stewart of Dirleton (Con)]

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

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

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

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

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

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

[Lord Falconer of Thoroton (Lab)]

Can the noble and learned Lord indicate what the Government’s position is if the judgment stands—that is, where the leave to appeal is not given or the appeal fails?

[Lord Stewart of Dirleton (Con)]

In that event, as with any adverse decision, I think, the Government would have to reserve their right to consider the matter, but the position is as I have stated, and we are confident of success.

I turn to the points raised by the noble and learned Lord—

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[Lord Falconer of Thoroton (Lab)]

Before the noble and learned Lord replies, can he also respond in relation to the Constitution Committee’s report as well? Will we get the Government’s response before the end of Report?

[Lord Stewart of Dirleton (Con)]

I first beg the noble Baroness’s pardon; I had not intended to overlook her. In relation to the answers to which she and the noble and learned Lord refer, as we have said on previous occasions at the Dispatch Box, these responses will be issued imminently.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

I think the answer to the first point is that the Victims and Prisoners Bill relates to victims, a matter on which the Attorney-General, exercising her supervision over aspects of the criminal legal system, would be in a good position to answer. That distinguishes it from this measure. However, that is only my instinctive answer. So as not to mislead the Committee, if the noble Baroness is content then I will write to her on the topic. I am grateful for her nod of agreement. As to whether this should be for Parliament as opposed to the Executive, in the form of the Minister, I can only repeat that the scheme of the Bill and the Government’s intention is that this decision should lie with the Minister responsible.

The noble Lord, Lord Ponsonby of Shulbrede, made two points, the second of which echoed the question anent judicial review posed by the noble and learned Lord, Lord Falconer of Thoroton. Our position is that the decision on the part of a Minister to comply with an interim measure is not amenable to judicial review. His other question related to the views expressed by my honourable friend in the other place the Minister for Immigration about flights taking off as soon as the Bill passes. While this Committee is engaged in detailed legal scrutiny, my honourable friend is speaking in public about the Bill’s policy: to see to it that these flights take off as quickly as possible and the deterrent effect of which my noble friend Lord Sharpe of Epsom and I have spoken should take effect.

[Lord Falconer of Thoroton (Lab)]

Why is it not susceptible to judicial review? Ouster of the courts normally involves at least a provision in a Bill. There is no such provision here. Ousting the courts by a statement from the Dispatch Box in the House of Lords is very unusual.

[Lord Stewart of Dirleton (Con)]

My Lords, I am not in a position to go into detailed discussion on this point, but I have given the Government’s position on the amenability of judicial review in relation to these decisions.

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[Lord Falconer of Thoroton (Lab)]

Could the Minister indicate when he might be in a position to debate it?

[Lord Stewart of Dirleton (Con)]

I undertake to correspond with the noble and learned Lord on that.

Amendments 58, 60 and 61 would bind the United Kingdom Government, preventing a Minister of the Crown or discouraging domestic courts from considering the individual facts of the case or the determination of the domestic courts as to whether a person would face a risk of serious and irreversible harm if returned to Rwanda.

The amendments would also require the United Kingdom courts to take account of an interim measure issued by the Strasbourg court, potentially supplementing the ECHR’s decision, rather than making their own independent finding about whether a person would face a real risk of serious and irreversible harm.

Finally, the disapplication of Section 55 of the Illegal Migration Act would lead to a conflict between the duty to remove established by the Act and the effect of an interim measure issued by the Strasbourg court. That would create uncertainty as to which will prevail.

Clause 4 includes a specific provision enabling the United Kingdom courts to grant an interim remedy preventing removal to Rwanda where it is satisfied that a person would face a real, imminent and foreseeable risk of serious and irreversible harm. Those measures have been designed to ensure that our courts are not out of step with the Strasbourg court; the serious and irreversible harm test is broadly the same that the Strasbourg court applies. Clause 4 would have our courts apply the same test as the Strasbourg court when considering the position of a person who might be sent to Rwanda. There is no reason why the United Kingdom courts, which we would expect to be in possession of all the evidence and facts in the case when making such a decision, cannot be relied upon to reach their own decision rather than being required to have regard to another court which may not have complete information on the case.

The Government submit that these amendments risk hampering or thwarting our efforts to stop the boats and to remove people with no right to remain in the United Kingdom.

There have been references from various quarters about the absence of my noble friend Lord Hailsham today. I indicate to the Committee that he was courteous enough to contact me directly and let me know what the position was. He has tabled Amendment 63, which relates to rules governing Rule 39 procedures. In support of that, the noble Baroness, Lady Chakrabarti, was the first to make inquiries of the Government as to what the position is in relation to the changes in the procedures. I am grateful to the noble Lord, Lord Faulks, who also discussed this. On 13 November 2023, the Strasbourg Court announced proposed amendments to its rules and practice concerning interim measures, including the naming of judges who make the decisions on interim measure requests, interim measures communicated as formal decisions, considering state representations before interim measures are indicated, and parties being able to request reconsideration of an interim measure.

The noble Lord, Lord Faulks, referred to his observations at Second Reading, expressed again today, concerning the differences between procedures when interim remedies are sought in our domestic courts and the case that is hitherto applied in the European court. I do not intend to repeat in any detail the points the noble Lord made. The point was that in relation to that case, as the noble Lord described, there was what amounted to a breach of natural justice, as it would be identified in a domestic court, as the United Kingdom was unable to put its case. As the noble Lord pointed out, in the domestic sphere, a person is able to seek and be granted an interim remedy.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, any work being done to improve a place is desirable of itself.

[Lord Falconer of Thoroton (Lab)]

Does the Minister still stand by the assurance from the noble Lord, Lord Sharpe of Epsom, that nobody will be deported to Rwanda until the monitoring committee is up and running? He is talking as though people will start to be deported the moment this Bill passes, which is not what the noble Lord, Lord Sharpe, led us to believe.

[Lord Stewart of Dirleton (Con)]

My noble friend Lord Sharpe confirmed to me a moment ago that the monitoring committee is already operational; it is up and running.

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[Lord Stewart of Dirleton (Con)]

Whether or not we as a country voted for him to take his place does not exclude the possibility of disagreement with anything that any official, be he ever so high, may have to say.

[Lord Falconer of Thoroton (Lab)]

I am encouraged by the noble and learned Lord’s statement that the monitoring committee is up and running. He will know that the international treaties committee of this House said that

“the implementation of the Treaty requires not just the adoption of new laws, systems and procedures, but also the recruitment and training of personnel. For example, the Monitoring Committee has to recruit a support team”.

Are we to take it that the Minister is saying the committee has indeed already recruited a support team? If not, it is very difficult to see how it could be described as “up and running”.

[Lord Stewart of Dirleton (Con)]

That is the information given to me, but I am happy to look into the matter to reassure the noble and learned Lord.

[Lord Falconer of Thoroton (Lab)]

Is it that it has recruited a support team, or that it is up and running?

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[Lord Falconer of Thoroton (Lab)]

But it is absolutely clear from the policy statement, and from answers that the Home Secretary gave to the international treaties committee of our House, that the position is not complete in Rwanda until it implements new Rwandan asylum legislation, which has not yet been passed. The Home Secretary was specifically asked when that legislation would be passed by Rwanda, and he was unable to give a timeframe. For the noble and learned Lord to say that Rwanda is now safe, when even the Home Secretary accepts that this law has yet to be introduced in Rwanda, seems to completely contradict the Government’s position. I ask him to reconsider the answer to the question: are the Government saying that Rwanda is now safe, without that legislation in Rwanda?

[Lord Stewart of Dirleton (Con)]

I think the terms of Article 9 of the treaty are clear. The Act comes into force the day that the treaty comes into force. As to the specific Rwandan legislation to which the noble and learned Lord refers, I am not able to give a categorical answer from the Dispatch Box.

[Lord Stewart of Dirleton (Con)]

The answer to the former is that it does not fall to me to read the Rwandan legislation; but, given that decisions are taken collectively by the Government, I can answer the noble Lord’s second question in the affirmative.

[Lord Falconer of Thoroton (Lab)]

The Advocate-General for Scotland may not be the right person to express a view in relation to Rwandan legislation, but I assume that somebody in the Government has seen a draft of this legislation. Could he indicate who that is and what that person’s opinion is?

[Lord Stewart of Dirleton (Con)]

My Lords, I will look into that. Presumably, the Foreign, Commonwealth and Development Office will take this matter under its wing. The noble Baroness, Lady Chakrabarti, refers to the Home Office. We will look into that and provide the noble and learned Lord with an answer.

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[Lord Stewart of Dirleton (Con)]

My Lords, what I have said was that I have not seen the Home Office legislation. I have not been called upon to review it.

[Lord Falconer of Thoroton (Lab)]

My Lords, I would be keen to know what is the basis for the noble and learned Lord’s assertion that Rwanda is safe, which he is putting forward on behalf of the Government.

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[Lord Stewart of Dirleton (Con)]

My Lords, the treaty guarantees that anyone relocated to Rwanda will be given safety and support and will not be returned to a country where their life or freedom will be threatened. That directly addresses the Supreme Court’s concerns about refoulement. As to the matter of the use I made of the word “academic”, I was using that in answer to points raised by noble Lords in relation to why the Bill bars the taking of general points of academic interest, which was referring to a point once the Bill and the treaty are in place. Once they are in place, there is no possibility of refoulement from Rwanda without contravention of an international instrument. The point is that, at that stage, argument before the domestic courts would be academic. I give way to the noble Lord.

[Lord Falconer of Thoroton (Lab)]

I do not think that the Minister has taken on board what the noble Lord, Lord Purvis, asked him. Article 10(3), which is the provision in the treaty that allows relocation only back to the UK, contains the following phrase:

“The Parties—”


that is, Rwanda and the UK,

“shall cooperate to agree an effective system for ensuring that removal contrary to this obligation—"

the obligation being to remove only to the UK—

“does not occur”.

The parties have not yet agreed that. The parties, the UK and Rwanda, therefore accept that, currently, there is not in place an effective system for ensuring that removal contrary to the obligation only to remove to the UK exists. Could the Minister please explain to the Committee how he can possibly say that, at the moment, under the agreement—that is the overarching agreement, not the agreement to agree an effective system for ensuring non-refoulement—such safeguards currently exist? We need an explanation for that.

[Lord Stewart of Dirleton (Con)]

My Lords, the point is that the treaty, while it has not been ratified, is a matter of agreement. I spoke about the work—

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[Lord Stewart of Dirleton (Con)]

That is a decision not for me to take. It will be taken by the Government collectively. I am not in a position to give a date to the noble Lord, if he was asking me to give one. In the circumstances, I cannot supply him with any further information.

[Lord Falconer of Thoroton (Lab)]

The Minister just referred to the independent experts who are going to help the Rwandans in relation to their processing of claimants. Our International Agreements Committee said those independent experts have yet to be appointed. Could he give the House an indication of how the appointment process is going? How many have been appointed, and when?

[Lord Stewart of Dirleton (Con)]

My Lords, that is a matter of detail upon which I will have to correspond with the noble and learned Lord.

The Government of Rwanda are committed to this partnership. Like the UK, they are a signatory to the refugee convention and have an international obligation to provide protection to those who are entitled to it. The Bill is predicated on the compliance by both Rwanda and the UK with international law in the form of the treaty, which itself reflects the international legal obligations of the UK and Rwanda.

Taking together the strengthened Rwandan asylum system and the commitment set out in the legally binding treaty—which, once ratified, will become part of Rwandan domestic law—it is unnecessary for a decision-maker, whether that be an immigration officer or a court, to consider any claim made on the ground that Rwanda may remove a person to another state. Furthermore, as I said earlier, that would delay unnecessarily the relocation of individuals to Rwanda, thereby undermining the core of the Bill.

For the reasons outlined, I respectfully ask that noble Lords do not move their amendments.

[Lord Falconer of Thoroton (Lab)]

My Lords—before the Minister sits down—it becomes crucial to know when this Act will come into force. This is not a personal observation, but the Minister has given the most unsatisfactory series of answers about what the position is in Rwanda. Clause 9 of the Bill says:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.


On Wednesday, I took the Minister through what the statement and the agreement suggest, which is that the Bill comes into force when the steps required for ratification are completed by both countries. The only step required for ratification that is referred to in the policy statement made by the Government, as far as the UK Government are concerned, is the passage of this Bill. So it appears that the Government are envisaging that, almost automatically on the passage of the Bill, they will treat the agreement as ratified. The consequence is that the Bill will immediately come into force. If that is right, it is pretty obvious that the Bill will become law and the Government can deport people to Rwanda when the safeguards are not in place. Could the Minister confirm that my understanding of when the Bill is going to come into force, which I set out in detail last week, is correct?

[Lord Stewart of Dirleton (Con)]

I cannot go beyond the terms of the clause to which the noble and learned Lord refers. Clause 9(1) states:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

I am fascinated by this new “court of Parliament” concept. Anyone who thinks that the Age of Reason ended in 1800 will need to read Hansard tomorrow because, if I may say so, the Conservative Privy Council Benches have perhaps delivered some of the finest contributions to this Committee today. I, for one, will be rereading the noble Lord, Lord Deben, because enlightenment is clearly not a single moment but something that has to be fought for again and again so as not to end up where the noble Baroness, Lady Bennett, warned us. If there is now to be a court of Parliament that is examining the safety of Rwanda on an ongoing basis, I do think the noble Lord, Lord Purvis, should have an answer on what procedures there are, under the Bill as currently drafted, for these monitoring committees to report not just to the Government but to the court of Parliament that is being so elegantly expounded by the noble and learned Lord.

[Lord Falconer of Thoroton (Lab)]

My Lords, before the Minister answers the question, this is a rather unusual court, because it is a court that does not afford the most basic rights of justice to the people who will be affected by the decisions we make. In any other court, if you are about to be exported to a place you say will torture you, you can normally at least have your voice heard; but not in this new court that the noble and learned Lord has just set up.

[Lord Stewart of Dirleton (Con)]

First, as the noble and learned Lord is perfectly well aware, the Bill blocks the possibility of refoulement and of return to any country other than the United Kingdom. In relation to the point from the noble Baroness, Lady Chakrabarti, that Parliament is a court is a familiar and well-known concept; it is a name by which Parliament is well known.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

I accept that and I did hear the noble Baroness make that point from the Benches opposite.

Since summer 2022, when judicial review proceedings in relation to the migration and economic development partnership began, the United Kingdom and the Government of Rwanda have worked to refine and improve that partnership. This has strengthened not only the operational readiness of Rwanda to receive and support migrants relocated under the partnership but the legal footing of the agreement and the commitments both sides undertake to ensure that national and international obligations and standards are met, having scrutinised closely and carefully all the circumstances of the country and information from appropriate sources.

Rwanda has a long history of supporting and integrating asylum seekers and refugees in the region. It has also been recognised internationally for its general safety and stability, strong government, low corruption and gender equality. I quote from what the Kigali-based comprehensive refugee response officer, Nayana Bose, of the UNHCR said in December 2021—mark the date:

“Rwanda has done an excellent job integrating refugees in the national education system, including urban refugees in the national community-based health insurance plan, providing them with national ID cards and offering them livelihood opportunities”.


As the Committee is aware, the Bill is underpinned by the treaty, Article 10 of which in particular sets out the assurances for the treatment of relocated individuals in Rwanda, including abiding by the refugee convention in relation to those seeking asylum. Furthermore, pursuant to Article 3 of the treaty, the parties agree that the obligations therein

“shall be met in respect of all Relocated Individuals, regardless of their nationality, and without discrimination”.

Under this commitment, Rwanda will treat all groups of people fairly. We have assurances from the Government of Rwanda that the implementation of measures within the treaty will be expedited. The treaty will follow the usual process with regard to scrutiny and ratification. I note that amendments tabled by noble Lords on this topic will be debated in the group to follow.

Amendment 17 would also oblige the Secretary of State to consider Rwanda safe only if it was deemed so for every descriptor of person as set out in Section 7(3) of the Illegal Migration Act. In relocating individuals to Rwanda, decision-makers will make a case-by-case decision about whether there is compelling evidence that the particular circumstances of each case would mean an individual would be at risk of serious and irreversible harm were they to be relocated to Rwanda. This means that each person’s circumstances are considered before relocation. We therefore consider the amendment unnecessary.

Amendments 24 and 27 relate to the roles of courts and tribunals. It is important that we recognise that these are considered decision-makers in relation to relocating individuals to Rwanda, and they may have a say in it.

Amendment 27 in particular would place an obligation on courts and tribunals to consider any claim that Rwanda may breach its international obligations by removing an individual to a country that was unsafe for them; that an individual may not receive fair and proper consideration of their asylum claim; and that Rwanda will not act in accordance with the terms of the treaty. This obligation is unnecessary. Rwanda is as committed to this partnership as we are. We have worked closely together to build this partnership and have trust that the commitments in the treaty will be upheld. That is why we have introduced the Bill, which reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty, allowing Parliament to confirm the status of the Republic of Rwanda as a safe third country.

The noble and learned Lord, Lord Falconer of Thoroton—I speak to his later contribution, rather than when he was assisting the noble Lord, Lord German, with legal analysis—posed the question of whether judicial review might be applicable. My noble friend Lord Howard of Lympne took up that point as well. On that aspect, I refer noble Lords to the terms of Article 22 of the treaty, which provides:

“In the event of a dispute arising out of or relating to this Agreement, including any question regarding its existence, validity, termination, interpretation or implementation, the Parties shall refer the dispute to the Joint Committee which shall meet within 14 … Working Days to discuss and seek resolution to the dispute by consultation”.


Therefore, the process by which matters will be addressed, if there is some shock to the operation of the system once it is operational, is set out in the terms of the treaty and operates on the level between the two countries.

[Lord Falconer of Thoroton (Lab)]

I thank the noble and learned Lord for answering the question, but I am not sure that answers the point. Suppose the position were that the UK said, “You haven’t implemented it properly”; the effect of this Act would be nevertheless that a Minister and every single deciding body would have to decide that Rwanda was a safe country. I am not quite sure how Article 22 responds to the suggestion that I think the noble Lord, Lord German, makes in his amendment that judicial review should be available—albeit, as the noble Lord, Lord Howard of Lympne, said, it would be the decision of the Secretary of State as to whether it was a safe country. Could the noble and learned Lord address that suggestion?

[Lord Stewart of Dirleton (Con)]

My Lords, in relation to the operation of the treaty during its currency, we should bear in mind that a monitoring committee is in place, which examines these things on a going-forward basis, keeps them under supervision and reports back.

Annexe B of the treaty also sets out the claims process for relocated individuals and how they will be treated. It sets out clearly that members of the first instance body, who will make decisions on asylum and humanitarian protection claims, shall make such decisions

“impartially, solely on the basis of evidence before them and by reference to the provisions and principles of the Refugee Convention and humanitarian protection law”.

In preparation for the potential relocation of individuals, officials in the United Kingdom have worked together with Rwandan officials to develop and commence operational training for Rwandan asylum decision-makers. Most recently, Home Office technical experts, in collaboration with the Institute of Legal Practice and Development, delivered a training course aimed at asylum decision-makers in Rwanda.

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[Lord Stewart of Dirleton (Con)]

More than a few weeks ago, I think, but what we have is an internationally binding treaty between two sovereign states. That—if the noble and learned Lord will bear with me—is of the utmost significance in considering such matters.

[Lord Falconer of Thoroton (Lab)]

Am I right in saying that the legally binding commitment commits Rwanda to do the things, particularly in relation to refoulement, which it had already promised—although not in an agreement—to do? Am I right in saying that the very judgment which the noble Lord, Lord Sharpe, said an hour ago the Government respect, would take considerable time to take effect because of cultural understanding and the need for very substantial change? I am looking for something other than simply signing an agreement to do with that which it had already promised to do, which the Supreme Court said it was not in a practical position to deliver. Will the Minister tell the Committee what has happened that gives one confidence that that which the Supreme Court says will take time will in fact be ready in an instant?

[Lord Stewart of Dirleton (Con)]

It is not a matter of being ready in an instant. The work is being undertaken. The point is that we have a specific treaty commitment not to refoul. As the noble and learned Lord knows, but just to remind the Committee, that is not to send people from Rwanda anywhere other than back to the United Kingdom; and, specifically, not to send them to places where they might be subject to torture or mistreatment; and, further, not to send them back to the countries from which they emerged if those countries are deemed dangerous.

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[Lord Stewart of Dirleton (Con)]

I think the noble Lord overstates the matter. Advice and assistance are being provided to assist a country to shape its laws and culture in a way which is consistent with ours. The work Rwanda has undertaken is substantial. Work has been done in response to the decision of the Supreme Court, albeit, as my noble friend Lord Howard of Lympne pointed out, that that decision ultimately related to refoulement, which is expressly covered in the treaty.

[Lord Falconer of Thoroton (Lab)]

The noble Lord, Lord Howard, is correct when he says that the fundamental reason why the Supreme Court said no to this was the risk of refoulment. But it said that the risk of refoulement was caused by Rwanda’s asylum system, which was totally defective across the board. Rwanda could not prevent refoulement because its system was so bad. The judgment refers to

“its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required”.

That is what the Supreme Court identified as being required. So it is both accurate but rather misleading to say it was only refoulement. There was the risk of refoulement because of the failures. Would that be the Government’s understanding of the position?

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[Lord Stewart of Dirleton (Con)]

My Lords, it is entirely prudent and appropriate to anticipate contingencies in the terms of a document such as a treaty.

[Lord Falconer of Thoroton (Lab)]

The noble and learned Lord is taking a much tighter and more defensive position than the Government themselves are taking. They accept the proposition of the question put by the noble Lord, Lord Kerr. They do not say that Article 10 is enough on its own. They say the following:

“The Supreme Court concluded that changes needed to be made to Rwanda’s asylum procedures in order to ensure compliance with the principle of non-refoulement”.


They accept the proposition. That is paragraph 76 of the Government’s own statement. So tell us what changes and where we have got to. It is not enough—and the Government accept that it is not enough—just to rely on Article 10.

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[Lord Falconer of Thoroton (Lab)]

Can the Minister say how many times it has been used in total?

[Lord Stewart of Dirleton (Con)]

The noble and learned Lord will not be surprised to hear that I do not have the figure to hand, but I imagine it is readily available from Westlaw.

The noble Lord, Lord Hannay, said, “Answer yes or no, does our word continue to be our bond?”, or words to that effect. It continues to be our bond within the circumstances of the incontrovertible constitutional position set out in Clause 1(4)(b). The United Kingdom and this Government take their obligations—

Police, Crime, Sentencing and Courts Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I pay tribute to the noble Baroness, Lady Brinton, for the clarity with which she has put this forward. The driving force behind this amendment is Marie McCourt whose daughter Helen McCourt was murdered by Ian Simms, and the body was never found. Ian Simms never indicated where the body was, refused to acknowledge what had happened, and was eventually released on parole. Prior to him being released on parole, Marie had campaigned successfully for a change in the law, which said in effect that if you did not indicate where the body was, parole should normally be refused.

Now, very effectively and with great understanding, Marie McCourt has pressed for a change in the law to make sure that there is, in effect, a crime of desecrating the body of somebody you have murdered. This is a greater problem than previously. In recent times, 54 murder trials have taken place without a body. We on this side of the Committee strongly support this offence. It might be asked whether this matters if you are being charged with murder. It matters to the victims’ families and therefore it should matter to the law. That is why we support this amendment.

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

My Lords, I will address the two amendments in reverse order, starting with Amendment 292L. This creates a new offence of concealment of a body and repeals the existing offence of obstructing a coroner. As it stands, to obstruct or prevent a coroner’s investigation of any body found, when there is a duty to hold one, is to commit an offence. That offence is a common-law one, triable only on indictment, and carries a maximum penalty of life imprisonment. The common-law offence is therefore wide-ranging. Proof of the offence does not require a person to conceal or attempt to conceal a body, or proof of a specific intent to obstruct a coroner—only that the coroner’s inquest is obstructed or prevented.

Amendment 292L replaces that wide-ranging offence that covers several ways in which a coroner is obstructed with a more narrowly defined offence which relates to obstruction by concealing a body or to facilitate another criminal offence. The specific offence proposed by the amendment also has a maximum penalty of three years—less than the life sentence that can be imposed under the current law. This approach, in our view, creates gaps in the coverage of the law compared with the existing common law and reduces the ability of the court to sentence for the full range of the offences.

We agree that concealing a body in this context should always be recognised by the law, and it already is in several ways. First, in the circumstances where an offender is responsible for a homicide, the fact that they concealed or mutilated a body is a clear aggravating factor in sentencing. As a result, the sentence will be increased to reflect the additional harm caused. Noting what the noble and learned Lord, Lord Falconer of Thoroton, said about the increasing number of trials that take place without a body, we acknowledge that as forensic techniques have improved, so has the determination or ingenuity of the criminal to try to erase traces.

Secondly, where the concealment of a body is part of a course of action that includes the killing, the sentence for murder—or for manslaughter, I imagine—will include that aggravating factor in deciding on the starting point from which the sentence should be imposed.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

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

[Lord Stewart of Dirleton (Con)]

Before the noble and learned Lord, Lord Falconer of Thoroton, replies, I should say that I did not make reference specifically to the point raised by my noble friend Lord Mackay of Clashfern, in relation to the proposal that he and the noble Lord, Lord Rosser, advanced for the funding of representation in these areas. I will undertake to have the department of my noble friend Lord Wolfson of Tredegar look into the response that was made to the proposal which my noble and learned friend and the noble Lord put forward at that time and see if an answer can be given to the Committee at some appropriate stage as to how that was considered and what conclusions were reached.

[Lord Falconer of Thoroton (Lab)]

I am very grateful to everybody who has spoken in the debate. Everybody apart from the Minister supported the principle. There were various specific suggestions as to how the proposal could be improved, which I certainly take on board. As ever, the noble and learned Lord, Lord Mackay of Clashfern, put forward an incredibly sensible proposal. Amendment 269 says that if a public authority is designated an “interested person” or a “core participant”, then legal aid should provide funding proportionate to that to the families. I think the noble and learned Lord, Lord Mackay, is saying, “Let the relevant interested party or core participant from the public sector pay for it”, and I would not have any objection to that.

I have to say that the Minister’s response was awful—and this is not in any way intended to be an attack on the noble and learned Lord, Lord Stewart of Dirleton, who delivered, as ever, a very careful answer. It was awful because it indicated that the Government are going backwards. It represented a degree of complacency about the problem that was entirely unwarranted. The noble Baroness, Lady Newlove, very effectively expressed what the problem was. The noble Lord, Lord Beith, indicated, quite rightly, that this problem has existed for a very long time.

The problem was exemplified by the Hillsborough case. The families, having had a very fair hearing from Lord Justice Taylor in the public inquiry, then attended an inquest, day after day, having to cross the Pennines to get there, where they saw the findings of Lord Justice Taylor, as he then was, eroded by representatives of public authorities able to take advantage of their total inequality of arms, aided and abetted by some elements in the press—not all the press, but some elements—which used the process to denigrate those who had died. It was absolutely appalling.

The issue is not just the suffering of the individuals but the disrepute into which it brings our legal system. If our legal system is unable to come to an appropriate answer because of the inequality of arms—all the public authorities are represented by all the lawyers in the world and the families, who have a cause and are right, cannot get their position across—then what good is our legal system? That is the point that everybody in the debate has been talking about, and the Minister’s answer showed absolutely no appreciation whatever that that is the problem.

We will not have another opportunity to come back with something. Amendment 269 and the schedule to be put in after Schedule 20 deals with it by ensuring that where there is a public authority in the firing line, the families should be represented. I note what the noble Lord, Lord Sandhurst, says, but all too often long-running problems with particular health bodies never get properly recognised because ultimately the health body is properly represented and the families are not. We will be back. In the meantime, I beg leave to withdraw the amendment.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Committee stage
Thursday 11th March 2021 Lords Chamber

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

This has been a very significant debate, and one should not lose sight of the important changes that will take place in the ability of people to sue the MoD in respect of human rights claims, tort claims and contract claims arising out of overseas operations. The underlying problem, which the noble Lord, Lord Thomas, identified in his very clear and effective opening remarks, is that you do not want a situation where, when a court is considering whether to extend the limitation period beyond the primary limitation period, there is a bias in favour of the defendant, the Ministry of Defence.

What the noble Lord is saying, in effect, is that it should be approached in the way that these cases are approached in every other piece of civil litigation where there is an application to extend a period of limitation beyond the primary limitation period: the judge comes to a conclusion as to what he or she thinks—this is not quite the line in the statute—is just and equitable in all the circumstances. One of the really important things that one is looking at is the fact that the claimant will have a claim, and the claimant may be losing what would otherwise be a just claim because of the passage of time—and it may well be in particular that the passage of time beyond the primary limitation period could not properly be described as the fault of the claimant.

Over the years, the courts have become quite expert at exercising a discretion in relation to this, both under the Limitation Act 1980 and under the Human Rights Act 1998. My noble friend Lord Hendy, in his very helpful and compelling remarks about how the limitation period works, and the noble Lord, Lord Faulks, were basically in the same place. They were both saying that we should strike the balance in an even-handed way. I hope that it is not the case that there is going to be a bias in favour of the MoD, because, as the noble Lord, Lord Faulks, said, that is not desirable. My noble friend Lord Hendy said that there should not be bias. I completely agree with that. The purpose of this first group of amendments advanced by the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, is to make sure that there is not such a bias. I agree with my noble friend Lord Hendy and the noble Lord, Lord Faulks, that it has to be clear that there is not going to be a bias.

I believe, therefore, that amendments to the Bill are required. Whether or not the proposals of the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, are the best way to do it in group 1—there might be another way of doing it—the sentiment that underlies these amendments and the fact that they have been supported by both my noble friend Lord Hendy and the noble Lord, Lord Faulks, is significant. I very much hope that the noble and learned Lord, Lord Stewart of Dirleton, will have listened and may perhaps reassure us that he will come back with some amendments to make sure that there is not that undesirable bias.

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

My Lords, I have listened with care to the remarks advanced by noble Lords in relation to this proposed amendment. At the outset, may I note and associate myself with remarks made by noble Lords as to the tenor of the speech introducing this part of the debate by the noble Lord, Lord Thomas of Gresford. This seems to me, drawing on my short experience in your Lordships’ House, to be of a kind with contributions which we hear from that source, from the noble Lord, Lord Thomas of Gresford, concerned as it was that the principles which underpin the legal systems in the jurisdictions of our United Kingdom should apply universally, irrespective of whether claimants are British subjects or not—underpinned also by that confidence in the ability of our courts and our system to do justice among all forms and manners of people.

In considering this amendment, I note that we have already discussed first of all the three factors that this Bill is introducing which the courts must consider and to which they must have particular regard when deciding whether to allow claims connected with overseas operations to proceed after the primary limitation periods have expired. I will not rehearse the arguments that I have already made as to why we are introducing these new factors, though I will necessarily, in answering your Lordships’ points, touch upon them.

However, the additional factor that these amendments propose to add is not, I submit, necessary. That is not because it is not right for the courts to consider the importance of proceedings in securing the rights of the claimant—of course it is—but because this is already something that the courts will take into account when they consider whether it is equitable in all the circumstances to allow a claim to proceed. The court would inevitably be assessing the right of the claimant in determining whether or not an extension to the time limit should be granted. The additional factor in terms of the amendment proposed does not enhance the policy aim of the Bill, which is to help provide service personnel with greater certainty. It would however, I submit, increase legal complexity in a way that is unnecessary.

--- Later in debate ---

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

In effect, these amendments once again reintroduce the normal approach to limitation, which is that if you do not bring your claim within 12 months under the Human Rights Act or, if it is a personal injuries claim, within three years—based on tort or a breach of an implied contract—then the court can extend indefinitely, in effect, if it is just and equitable to do so. The courts have applied sensible approaches to those issues, and the longer you are away from the primary limitation period expiring, the better the reason you must have for extending the time.

The noble Lord, Lord Thomas of Gresford, made a very powerful point, asking why there should be special rules for the Ministry of Defence in relation to overseas operations. The answer that the Ministry of Defence gives is that military personnel involved in overseas operations should know—indirectly, because they will not normally be sued personally—that no litigation will arise from their conduct after a specified period, which is six years or one year from the date of knowledge, whichever is later.

That approach does not seem to me or veterans’ organisations to be legitimate in relation to claims being brought by soldiers or veterans in respect of negligence or breaches of human rights by the Ministry of Defence. Military veterans or existing soldiers should be subject to the same rules in relation to limitation as apply in any other claims. There is no evidence that the reassurance that individual members of the military are looking for—in relation to ongoing litigation out of overseas operations—is coming from fear of claims being brought by veterans against the Ministry of Defence for personal injuries caused normally by negligence on its part.

As such, in so far as the new rule about limitation in respect of overseas operations applies to prevent claims being brought by veterans or existing soldiers, I am against it. The proposal made by the noble Lord, Lord Thomas of Gresford, which, in effect, applies the normal rules, should be applied to veterans and existing soldiers who want to bring claims arising out of negligence or breaches of human rights in an overseas operation, just as much as if they bring a claim with the normal rules applying if the injury had occurred to them in the UK. The soldier injured by the provision of a negligent piece of equipment—body armour or a vehicle—can bring a claim with the normal rules applying if it happened on Salisbury Plain, but he or she cannot if the same act of negligence had occurred in an overseas operation. That is profoundly wrong.

[Lord Stewart of Dirleton (Con)]

My Lords, the limitation longstops provide service personnel with a greater level of certainty that they will not be called on to give evidence in court many years after an event. The uncertainty that the Bill proposes to address can have a significant effect on service personnel and veterans. It prevents them from drawing a line under certain traumatic experiences, always knowing that there is a possibility that the events of the past may be dug up again. This is why it is important to have finality and why the limitation longstops need to have a clear end.

In moving the amendment, the noble Lord, Lord Thomas of Gresford, asks for the policy that underlies this measure; that is the policy. For the reasons that I have discussed, it is important that limitation longstops have a clear end, one that cannot be overcome. Were it to be overcome by the existence of some residual discretion, such as the noble Baroness, Lady Chakrabarti, would seek to have imposed, that would negate the benefits to service personnel of greater certainty that they will not be called on to give evidence many years after the event. Let us remember that, in claims such as can be anticipated, it will most likely not be Ministers standing in the witness box and accounting for decisions taken; it is likely to be the very comrades of service personnel themselves.

Six years provides enough time to bring a claim: to echo the words of the noble Lord, Lord Faulks, it is a fairly lengthy period. The vast majority of service personnel and veterans already bring relevant claims within six years of the date either of the incident or of knowledge. As I say, giving discretion to the courts to allow claims after the expiry of the longstops will negate the benefits, and we want to provide service personnel and veterans with those benefits which flow from greater certainty.

The noble Lords, Lord Thomas of Gresford and Lord Faulks, adverted to a contrast with the situation that may arise in relation to Northern Ireland. That is indeed a special context, and, echoing the words of the noble Lord, Lord Faulks, this is a matter to be dealt with in separate legislation.

The longstops apply to all Human Rights Act and death and personal injury claims connected with overseas operations. We believe that six years is a sufficient period to commence proceedings, regardless of who is bringing the claim. Where claims cannot be brought within the relevant timeframe because the claimant was not aware that their injuries were caused by the actions of UK Armed Forces, the date-of-knowledge provisions help to mitigate any unfairness that might otherwise be caused.

Counter-Terrorism and Sentencing Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

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

[Lord Paddick (LD) [V]]

My Lords, as the noble and learned Lord has explained, most of these amendments are technical in nature. The first group relates to a person who is serving an extended sentence in respect of a terrorist offence.

Amendments 27 to the end of the group amend Schedule 13. As the noble and learned Lord has explained, in Scotland—unlike in the rest of the UK—multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date. This is known as “single terming”. Part 7 of Schedule 13 disapplies single terming for individuals where one of the offences is a terrorism offence, to ensure that the provisions of the Bill apply correctly. The noble and learned Lord did not exactly say that, but that is what he meant.

I had two questions for the Minister. The noble and learned Lord has already answered the first—on Amendment 31. The second is about Amendment 43, which makes changes to Section 24 of the International Criminal Court (Scotland Act) 2001. Can the noble and learned Lord give the House some idea of the extent of this change? How many prisoners serving sentences in Scotland have been sentenced by the international court, and what is the effect of these changes on them?

I gratefully acknowledge the support of the noble Lord, Lord Thomas of Gresford, in advising me on these matters.

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

My Lords, I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for explaining these measures. It would probably be helpful for a similar letter to that provided in Committee to be placed in the Library of the House so that we can have a clear view about it.

We do not object to any of these amendments. They have a quite significant effect on a very small number of cases, because the consequence for people convicted of a serious offence and a serious terrorist offence is that they may stay in prison for years longer. But that is the policy decision and the consequence of the Bill, and I accept that.

I am slightly anxious that this has happened so late in the process and that what the Bill contains depends on when the music stops. The Bill was introduced in the Commons in May 2020. Ten months have gone by. There has been this quite massive change of effect on a few cases. Can the noble and learned Lord explain how that has happened? I was struck by the noble Lord, Lord Wolfson, saying to the noble Lord, Lord Carlile, that he was happy to continue discussions on the issues. This is good and nice, but the Bill has a cliff edge. I worry that it is very late in the day to make these sorts of changes but, as I said, we do not object to them.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to both noble Lords for their contributions to this very short debate. The noble Lord, Lord Paddick, asked about the number of prisoners affected by this in relation to the International Criminal Court. I do not have that information to hand, but I undertake to supply it to the noble Lord.

The noble and learned Lord, Lord Falconer of Thoroton, raised the lateness in the stage of proceedings at which this amendment has been tabled. I acknowledge the complexity of the statutes involved and the alertness of those in my office, the Advocate General’s office, and in the Scottish Government who are monitoring the position. There has been useful and effective collaboration between them. I will look into the matter raised by the noble and learned Lord and see whether I can provide any further detail as to why these points were identified only at this stage. If I can identify anything specific, beyond my general answer relating to the complexity of the relevant provisions, I will provide it to the noble and learned Lord in writing.

Counter-Terrorism and Sentencing Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

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

Like the noble Lord, Lord Paddick, I too am grateful to the four Ministers for the care and good humour with which they have dealt with it all. Of the three amendments, Amendment 66 looks entirely technical. As the noble and learned Lord, Lord Stewart of Dirleton, says, Amendment 67 deals with a situation where you have a non-terrorist sentence and then, consecutively, before or after, a terrorist sentence. I cannot work out how you deal with that situation for the purposes of licences as a result of this amendment. Hopefully, that will be explained to us—for reasons that may be entirely my fault, it is not entirely clear to me from the wording of the amendment. As I understand it, Amendment 70 again deals with the position of consecutive sentences; and again, the effect of that is not entirely clear to me. It might be significant, because what we are dealing with are very long sentences. So I hope that the noble and learned Lord will explain this when he comes to write his letter to us. I am very much obliged.

[Lord Stewart of Dirleton (Con)]

My Lords, I will undertake to provide that explanation on what are, as all the speakers who have kindly commented on the provisions have remarked, matters of a technical nature.

Counter-Terrorism and Sentencing Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

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

My Lords, the Minister’s words brought to mind many waterfalls that I know and love in Scotland, but I will forgo the opportunity to comment on Scottish criminal law. I am sure that both these minor and technical amendments are perfectly justified and I have no more to say about them.

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

I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for the clarity with which he introduced these two technical amendments. Perhaps I may ask two questions. First, on Amendment 8, what would the implications have been had this amendment not been made? I was not clear from what he said whether it would change any position. Secondly, in relation to Amendment 9, how many further convictions would have been included without the decision to limit the availability of the new sentence to cases of conviction on indictment?

[Lord Stewart of Dirleton (Con)]

My Lords, the purpose of the amendment was to reflect the approach adopted across England and Wales, and Northern Ireland. The “waterfall” approach means that courts can impose the new sentence only where they do not impose, for example, a life sentence or an extended sentence. Within the Scottish sentencing framework, this waterfall includes the sentence of detention without time limit, which was unintentionally omitted during initial drafting of the clause. As I said earlier, subsection (6) in the previous version of the Bill was amended during the Commons debate. The amendment would simply remove a reference to a provision that no longer exists.

Just as the noble Lord, Lord Thomas of Gresford, is aware of attractive waterfalls in Scotland, I am aware of attractive waterfalls in Wales. I hope that some day soon we will be permitted to discuss them in a friendly fashion together.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Stewart of Dirleton and Lord Falconer of Thoroton

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

[Lord Falconer of Thoroton (Lab)]

I am delighted to follow my noble friend Lady Chakrabarti, who has made a real contribution to the quality of the debate in this Committee and will make a real contribution to the changes necessary to the Bill. I shall speak particularly to Amendment 71, in the name of my noble friends Lord Rosser and Lord Kennedy. As the noble Lord, Lord Anderson of Ipswich, previewed, it seeks to make it clear that there is a jurisdiction in the Investigatory Powers Tribunal to give compensation to people.

This group concerns compensation for innocent victims. It seems to me that innocent victims can take two forms. One is somebody who is completely innocent and, pursuant to a crime authorised by a CHIS, gets beaten up, for example, by the CHIS. What remedy does that person have? Secondly and separately, there is the person who is a target of CHIS activity; for example, somebody who, it is thought, might be about to commit a crime and their premises might be burgled, pursuant to an authorisation under the Bill. What remedy does that person have? Let us assume, particularly, that the whole authorisation was wrongheaded from the start because, as everybody accepts in this process, errors get made. So, there is the innocent victim of crime on one hand and, on the other, the target of CHISery who is the wrong target and a judicial review would be allowed in relation to that.

On the face of the Bill, if it is all lawful, then there is no remedy at all. Will the Minister please explain what remedy there is? The noble Lord, Lord Anderson of Ipswich, made it clear that he thinks activities under Part II of the Regulation of Investigatory Powers Act 2000, which this is amending, already provide a remedy. Indeed, in the Commons in answer to this amendment, the Security Minister replied:

“Let me be clear: there is no barrier under the Bill for affected persons seeking a judicial review of a decision made by a public authority. Similarly, the Investigatory Powers Tribunal already has jurisdiction in relation to conduct to which part 2 of RIPA applies, which will include the amendments made by the Bill. I am, though, listening to concerns expressed by Members about the Bill’s potential impact on routes of redress, and I am happy to consider whether anything further is needed.”—[Official Report, Commons, 15/10/20; col. 613.]


It would be helpful to have, first, a repetition of the assurance that the IPT covers judicial review-type relief—on the basis, presumably, that the original authorisation is unlawful—and therefore the reference to the fact that whatever is done under the authority is lawful does not apply to the original grant of the authority.

Secondly, will the noble and learned Lord deal with the issue of the innocent victim of the crime when there is a lawfully authorised criminal conduct authorisation, and the consequence of that is that somebody is, for example, severely beaten up? What remedy does that totally innocent victim have in such circumstances? The effect of the Bill is to say that the conduct is rendered “lawful for all purposes”. It cannot mean that. It cannot mean that the totally innocent victim, who has other remedies, is deprived of all those remedies because it is authorised under a criminal conduct authorisation: it cannot have intended that.

As the noble Lord, Lord Anderson of Ipswich, said, it may be key that we focus on the public authority which provided the authorisation and do not lose sight of the person giving the authority by focusing on the liability of the CHIS themselves. This point was clearly considered by the Joint Committee on Human Rights in suggesting its amendment to try to deal with this.

People are very concerned about the innocent victims. I strongly invite the noble and learned Lord to deal also with the practical issues referred to by the noble Lord, Lord Anderson of Ipswich. For all the remedies in the world you create, if you can never tell the victim what has happened, how does that person get a remedy? That is an important point.

[Lord Stewart of Dirleton (Con)]

My Lords, Amendments 6 and 8 seek to remove the exemption from civil liability for CHIS criminal conduct. While I understand the intent behind these amendments, which is to allow those impacted by a criminal conduct authorisation to be able to seek civil redress, there are good reasons why the Bill has been drafted in this way.

I explained in response to amendments tabled by the noble Baroness, Lady Chakrabarti, why the Bill has been drafted to render correctly authorised conduct lawful for all purposes. Those reasons apply equally to criminal and civil liability. An authorisation will have been granted because it was deemed necessary and proportionate to tackle crime, terrorism or hostile state activity. Where that authorisation has been validly and lawfully granted, it is right that criminals or terrorists cannot then sue the undercover operative—the CHIS—or the state for that same activity.

I appreciate that the spirit of these amendments is to ensure that any innocent persons impacted by an authorisation can seek redress where appropriate. I reassure noble Lords that all authorisations are, in the first place, very tightly bound and, as part of the necessity and proportionality test, the authorising officer will consider any other risks of the deployment. An authorisation must consider and minimise the risk of impacting those who are not the intended subject of the operation.

The Bill does not create an exemption for all and any civil liability. For example, the conduct that is the subject of the Undercover Policing Inquiry would not be exempt from civil liability under the Bill’s regime.

I also seek to offer reassurance that routes of redress will be available to those who have been impacted by a criminal conduct authorisation where that authorisation has been unlawfully granted, following the observations from the noble and learned Lord, Lord Falconer, on the situation where the wrong stems from the authorisation granted being improper or too broad. The Bill does not prevent affected persons from seeking a judicial review of a public authority’s decision to authorise criminal conduct. If a judge concluded that the decision had not been lawfully made, the affected person could seek a remedy through the courts. The noble and learned Lord referred to the statement made in the other place on this. Equally, as with other investigatory powers, any affected person or organisation can make a complaint to the Investigatory Powers Tribunal which will then be independently considered by the tribunal.

A further important safeguard is the obligation on the Investigatory Powers Commissioner to inform a person of a serious error that relates to them, where it is in the public interest. This includes situations where the commissioner considers that the error has caused significant prejudice or harm to the person concerned. The commissioner must also inform the person of any rights they have to apply to the Investigatory Powers Tribunal. That is an example of the commissioner actively seeking out persons who have been wronged as part of their remit to consider all documentation, facts and circumstances surrounding the granting of a CCA.

Amendment 71, tabled by the noble Lord, Lord Rosser, is unnecessary. Any person or organisation can already make a complaint to the Investigatory Powers Tribunal with regard to conduct under Part II of RIPA; that complaint will be considered independently by the tribunal. The IPT operates one of the most open and transparent systems in the world for investigating allegations that agencies have breached human rights. It hears cases in open where possible and publishes detailed reports on its work and rulings. This will remain unchanged under the Bill.

These criminal conduct authorisations are very tightly bound so that they meet the necessity and proportionality test. A number of routes of redress will be available to persons wronged to challenge the validity or lawfulness of the authorisation and then seek the appropriate remedy, whether through judicial review or a complaint to the independent tribunal.

The matter of applications to the Criminal Injuries Compensation Authority was raised by the noble Lord, Lord Anderson, and others. I regret to advise the House that I do not have information specific to the CICA in front of me, but I will write to him and others who have expressed an interest on that point.

On a point raised by the noble and learned Lord, Lord Falconer, it is important to bear in mind that RIPA already excludes civil liability for authorised CHIS conduct, so what is introduced in the Bill is not new.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

The remedy lies in the approach to the tribunal and the obligation on the commissioner to notify a person who is wronged of their right.

[Lord Falconer of Thoroton (Lab)]

Can the Minister confirm that the totally innocent victim can go to the Investigatory Powers Tribunal and make a claim for damages for assault and battery?

[Lord Stewart of Dirleton (Con)]

I am happy to confirm that.