Iranian Islamic Revolutionary Guard Corps

Lord Wolfson of Tredegar Excerpts

Tuesday 23rd May 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I absolutely join the UN rapporteur in condemning those executions.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful that the Government are keeping this matter under active consideration because otherwise there would be a real risk of a delay in a decision.

[Noble Lords]

Oh!

[Lord Wolfson of Tredegar (Con)]

The fact is that the Minister who answered the debate in the other place on 12 January this year was unable to identify a single reason why the IRGC should not be proscribed. My noble friend the Minister is also unable to find a reason, and that is because there is none. I respectfully urge my noble friend and the Government to take the only decision available to them, and to take it soon.

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for his analysis.

Public Order Bill

Lord Wolfson of Tredegar Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I hope I do not cause offence here, but I disagree strongly with the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss. I shall give the House a few words that would be more than minor but less than significant: it could be “reasonable”, “measured, “limited” or “tolerable”. There are all sorts of stages between “more than minor” and “significant”. As a veteran protester, I have probably passed quite a few red lines in the past, although I have never committed violence—so far.

I turn to Motion A1. Obviously I am upset, along with other noble Lords, I hope, at the fact that the other place immediately whips out all our good work and indeed our hard work. We spend time reading the Bill and thinking about it, which obviously the majority of people in the other place do not; they simply do whatever the Government tell them. I feel that the Government are trying to stop protest of virtually every kind—almost any protest imaginable—and that is so deeply oppressive that I could not possibly support it, so I wholeheartedly support Motion A1.

If the House will indulge me, I will mention the other two Motions as well so that I speak only once. I am horrified by Motion B2. I regret that Labour feels it cannot support Motion B1 in the name of the noble Lord, Lord Paddick. Sitting here, I have been thinking that I would vote against Motion B2, but that is probably too difficult. I do not even think I can abstain, so I think I am going to vote for it—but it will be through gritted teeth as it goes against all my libertarian views, and I am really annoyed with Labour for putting it in.

To finish on an upbeat note, there is Motion C. The Government make endless bad decisions. We are wallowing in an ocean of bad decisions nationally because of this Government, and some extremely unpleasant scenarios, with poverty and deprivation, are playing out because of them. But here they have done the right thing. It is incredible that the Government have come back with not just something that we generally asked for but with a slightly improved version of the Lords amendment, which I have to thank them for and say “Well done”—if that does not sound too patronising, or matronising. It is a win for civil liberties and the right of the public to be informed about protest and dissent.

On a final note, I have been saying that I am the mother of a journalist. That is a slight twist of the truth, because actually I am the mother of an editor, and I just know that she will be absolutely delighted with what the Government have done today.

[Lord Wolfson of Tredegar (Con)]

My Lords, I declare an interest: I generally pay my mortgage by debating the difference between “significant” and “more than minor”, so I am on very familiar territory.

The problem with the word “significant” is this: what is the opposite of significant? It is insignificant. There is therefore a constant debate in the courts when something, generally a contract, is said to be significant. Does it mean substantial—that is, quite a lot—or does it mean not insignificant, in other words more than de minimis? That is the problem with a word such as “significant”. For those reasons, I respectfully endorse the approach of the noble and learned Lord, Lord Hope of Craighead. We need a test here that is easy to apply.

Elsewhere in the law, we have the concept of significant risk. Of course, that is even more difficult, because there you are talking about risk—something that might happen—whereas here, in Motion 1A, we are talking about something that has happened or is happening. The noble and learned Baroness, Lady Butler-Sloss, asked what the difference was between “more than minor” and “significant”. In the Court of Appeal case of R v Lang, Lady Justice Rose, who is now in the Supreme Court, said in her judgment:

“The risk identified must be significant. This is a higher threshold than mere possibility of occurrence”—


that is, a risk case—

“and in our view can be taken to mean … ‘noteworthy, of considerable amount or importance’”.

Even in that definition, there is a difference, I would suggest, between “noteworthy” and “of considerable amount”—and that is in the context of a risk, not something that is actually happening.

Security Threat to UK-based Journalists

Lord Wolfson of Tredegar Excerpts

Tuesday 21st February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I agree with the noble Viscount that the service is indeed critical. I actually delivered some of the figures earlier on access by an Iranian audience to the BBC. Some 99%, as I said earlier, use BBC Persian on TV and online. Only 1% of the BBC’s total weekly Iranian audience of 13.8 million people get BBC news solely via radio. I agree that the BBC World Service does play a vital role in delivering high-quality, accurate and impartial broadcasting across the globe. The FCDO is providing the BBC World Service with over £94 million annually for the next three years; it supports services in 12 languages and improvements to key services in Arabic, Russian and English. That is in addition to nearly £470 million that we have already provided though the World2020 Programme since 2016. To say it has been closed is very much an overstatement.

[Lord Wolfson of Tredegar (Con)]

My Lords, over the weekend I read two stories in the media. The first was that fundamentalist clerics in Iran—a regime inspired by a warped perversion of Islam—had been plotting to murder Israelis and also British Jews here in the UK, as confirmed by the Minister in the other place yesterday. The second story was about the Abrahamic Family House in Abu Dhabi, the vision of Sheikh Mohamed bin Zayed, where on the same site a church, a mosque and a synagogue of equal size and equal beauty—designed by a British architect, Sir David Adjaye—have been formally opened. It is remarkable, I would suggest, that religion—in this case, the same religion—can be used to inspire murder or to promote dialogue and tolerance. Will my noble friend the Minister confirm that His Majesty’s Government will do all they can to maintain vigilance and protection against the former, while equally doing all they can to support and promote the latter?

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that. He is absolutely right: between 2020 and 2022, Iran did try to collect intelligence on UK-based Israeli and Jewish individuals. We believe this information was preparation for future lethal operations. My right honourable friend in the other place highlighted that Iran has not just targeted Jews and Israelis; it has targeted LGBTQ communities, Muslims and Christians. That is not just a flagrant betrayal of the principles of international law but, as my right honourable friend also said, a betrayal of ancient principles of Persian culture. So I entirely agree with my noble friend that we should be vigilant and on guard as to the former. I absolutely salute the efforts that he described in Abu Dhabi. Anything that promotes dialogue and tolerance between religions, or indeed peoples, has to be applauded and encouraged. I will certainly encourage the Government to do that very volubly.

Public Order Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Hacking (Lab)]

For the reasons that the noble Lord gave in his short speech, these statements by the noble Baroness, Lady Williams, who is greatly respected in this House, make me nervous.

[Lord Wolfson of Tredegar (Con)]

My Lords, as we are on Report and not in Committee, I will make three short points.

First, the noble Baroness, Lady Jones of Moulsecoomb, is quite right to refer to our freedoms. I am sure that she intentionally used the plural and not the singular, because there are two freedoms here that we need to have regard to: the undoubted freedom to protest and demonstrate, and the freedom to go about your business unhindered and not be harassed. Ultimately, in a democratic society we seek to balance those two freedoms. We need to have regard to both sides of that coin.

Secondly, on the objects that could be caught by these clauses as drafted, a number of references have been made to John Lewis—I do not know whether its publicity department is grateful for that. It would be a misconception to proceed on the basis that, merely because an object has been or could be bought in John Lewis, it is therefore inoffensive and should not be caught by the criminal law. The last time I was in John Lewis, which I accept was some time ago, it sold very large knives, hammers, ropes and other implements. Let us put the John Lewis point to one side; it is a good old-fashioned red herring.

Thirdly, I turn to what the clause provides. The noble Lord, Lord Deben, and the noble and learned Baroness, Lady Butler-Sloss, focused on the powers of the constable in Clause 11(7). The important thing about Clause 11(7), I would suggest, is that you have to read the clause as a whole. Clause 11(1) starts with an officer at

“or above the rank of inspector”

believing, first, that some offences are going to be committed and, secondly, that people will be carrying prohibited objects, which are defined in the clause. Next, that officer has to reach three conclusions under subsection (4). I invite noble Lords to look at subsection (4), because “necessary” appears there three times. He has to believe reasonably, first, that

“the authorisation is necessary to prevent the commission of offences”;

that the “specified locality”—it has to be a specified locality—

“is no greater than is necessary to prevent such activity”;

and that the period of time, which cannot be more than 24 hours, is no more than is necessary. What can the superintendent do under subsection (5)? All they can do is to continue that authorisation—not start it, but continue it. For how long? No more than a further 24 hours. It is in that context that the constable can apprehend and do a stop and search.

--- Later in debate ---

[Lord Patten of Barnes (Con)]

I would like to follow what my noble friend just said, or at least the beginning of his remarks following the speech by the noble Baroness, Lady Boycott. If the Chinese Communist Party, through its quisling administration in Hong Kong, was introducing legislation like this, we would denounce it. The Foreign Office would denounce it—it would be in its six-monthly report about attacks on freedom of speech and attacks on freedom in Hong Kong—and we would all cheer. It is astonishing that we are proposing in this country the sort of thing which we would denounce if the Chinese Communist Party were doing it in Hong Kong.

[Lord Wolfson of Tredegar (Con)]

My Lords, I may be labouring under a misapprehension, but surely there is a critical difference between this country and China. As I understand it, the proposed new clause would prevent a constable exercising a police power for the principal purpose of preventing someone observing or reporting on a protest. If we do not pass this amendment, that act—that is, arresting somebody for the principal purpose of preventing reporting on a protest—would still be unlawful: it would be an abuse of police powers to do that. The difference is that here we are being asked to pass legislation to make illegal that which is already unlawful. That is the concern I have with it. When I was a Minister, I was frequently told, “You should add this clause and that clause to send a signal”, and I kept saying, “The statute book is not a form of semaphore.” My problem with this clause is nothing to do with the content of it; I just have a problem with passing legislation to make unlawful that which is already unlawful.

[Lord Paddick (LD)]

My Lords, there cannot be any legitimate objection to journalists, legal observers, academics or even members of the public who want to observe and report on protests or on the police’s use of their powers related to protests. We have seen in incident after incident how video footage of police action, whether from officers’ own body-worn video or that taken by concerned members of the public, has provided important evidence in holding both protesters and police officers to account for their actions. The need for this amendment is amply evidenced by the arrest and detention of the accredited and documented broadcast journalist, Charlotte Lynch, while reporting on a Just Stop Oil protest. It is all very well for noble Lords to say, “Well, if somebody was arrested in the way that Charlotte Lynch was arrested, it was unlawful”, but the fact is that Charlotte Lynch was taken out of the game for five hours and detained in a police cell, where she could not observe what was going on. We need upfront protection for journalists and observers, and not to rely on a defence that they can put after they have been handcuffed, arrested, and put in a police cell even though they are in possession of a police-accredited press pass. We support this amendment and will vote for it if the noble Baroness divides the House.

Public Order Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I will speak to my Amendment 55. I am grateful to follow the speech of my noble friend Lord Faulks. My amendment addresses the legal difficulties caused by the judgment of the Supreme Court in 2021 in the case of Ziegler, in respect of offences in which it will be, and will remain, a defence for a person charged to prove that they had a lawful or reasonable excuse for the act in question.

The judgment in Ziegler concerned Section 137 of the Highways Act 1980, which makes it an offence for a person

“without lawful authority or excuse”

wilfully to obstruct

“free passage along a highway”.

The Supreme Court ruled that the exercise of the convention rights to freedom of expression and freedom of assembly and association—which might loosely be summarised as the right to protest—constituted a lawful excuse. This has the effect that, before a person may be convicted of obstructing the highway, the prosecution must prove that a conviction would be a proportionate and thus justified interference with that person’s convention rights. In practice, this has caused real difficulties for the police, who at times have appeared paralysed. It has made it difficult for judges to run trials fairly and for magistrates to reach decisions.

My amendment leaves in the word “reasonable”. It does not make it a strict offence to obstruct the highway. You can still do it if you have a “lawful authority or excuse”. What is to be judged in future would be the duration and nature of what is done, not the fact that you have what you consider to be a high motive—whether it is flat-earth or anti-abortion protesters, it does not matter. It is not about whether you are a good person, or you think you are a good person; it is about what you are actually doing and whether you are stopping ambulances and people going about their daily lives unreasonably and for too long.

The amendment means that conduct being intended or designed to influence government or public opinion will not, of itself, make it reasonable or lawful. That is consistent with the jurisprudence of the Strasbourg court. I stress that the court has said:

“In a democratic society based on the rule of law, the ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.


However, the law protects only the right to peaceful assembly. Articles 10 and 11 of the convention establish that public authorities are entitled to interfere with the right to protest for legitimate purposes such as the prevention of disorder, the prevention of crime and—importantly—the protection of the rights and freedoms of others. It is not about stopping every march, but about stopping prolonged obstruction. That is what we are about.

The Strasbourg court has gone on to rule that the rights of the public include the right to move freely on public roads without restriction, so there are two rights here; you have a right to protest, but the general public also have a right to move freely on public roads without restriction. It is a balancing exercise. The court has further recognised that states have a wide margin of appreciation in determining necessity when it comes to taking action against those who deliberately disrupt traffic or other aspects of normal life.

The right to protest in a public place exists, but it is not unfettered. It must be balanced against the rights of your fellow citizens. If the public are to be protected in the face of these novel types of protest we have not seen before, which in their duration and nature go far beyond what is fair and reasonable, the police must be able to intervene and not be paralysed by anxiety. Peaceful assembly and ordinary marches will still be protected. The public will still have to suffer and tolerate a measure of inconvenience and delay, but that will be within bounds.

My amendment would end the state of affairs in which persons who obstruct the highway, damage property or seek to avoid arrest can distort and upset the proper balance by asserting their motive. Peaceful protest will be permitted, but the balance will be restored. That is why, at the end of the amendment, it makes it plain that

“this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.

Henceforth, if my amendment is adopted, your assertion of a high motive will not suffice. You will be judged by what you did, how long it went on for, and the effect on other people.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.

Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.

On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.

[Lord Coaker (Lab)]

My Lords, in supporting Amendment 2 tabled by my noble friend Lady Chakrabarti and the noble and learned Lord, Lord Brown, and the points they have made, I will focus my remarks on Amendment 8 and the amendments consequent to it which seek to define a “reasonable excuse defence”.

I start by saying that I cannot really believe the mess the Government have got themselves into on both the definition of “serious disruption”, which we discussed previously, and the definition of a “reasonable excuse defence” we are discussing now. Nobody disagrees with the noble Lord, Lord Faulks—again, I agree with the Constitution Committee, as, I think, do most of us—but it would be extremely helpful if there were a definition of “reasonable excuse defence” in the Bill. I do not think that is a point of disagreement between us; the Constitution Committee itself recommends that. However, let us look at Amendment 8 as an example of the wording that is also used in Amendments 17, 27, 33, 50 and 51, as well as in other related offences. What protest ever takes place that is not part of a current dispute? Who protests because they are happy about something? I have not seen any demonstrations saying how brilliant this or that is; there might be an example, but, usually, a dispute happens and then people protest it—that is logical. But in each of these amendments, you cannot use “an issue of current debate” as a reasonable excuse in any circumstance. That is what we are being asked to agree to in Clauses 1, 3, 4 and 7 and some of the later clauses. Those clauses currently contain the reasonable excuse defence; the Constitution Committee says, quite rightly, that it would help if that were defined; and the definition the Government have supported says that you cannot use a current dispute as an excuse. I could go on at great length, but it makes the point by itself—it is ludicrous. That is the amendment the Government are supporting and that they are asking people to vote for.

Migration and Economic Development Partnership with Rwanda

Lord Wolfson of Tredegar Excerpts

Wednesday 15th June 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Lord will understand that I cannot talk about other countries, but I know that other countries are interested in the scheme we have agreed with Rwanda.

[Lord Wolfson of Tredegar (Con)]

My Lords, two points are absolutely clear here when one talks about the rule of law. I declare an interest as a practising barrister. First, I would not like to be identified with several of my clients, with the greatest of respect to them. A lawyer should not be identified personally with the cause for which they are arguing, nor should a lawyer be identified, with the greatest of respect, with the people smugglers engaged in this enterprise.

Secondly, does the Minister agree that the European Court of Human Rights would do itself more favours if, instead of passing orders with no named judge attached to them, just as justice is done in this country by judges whom we can identify, orders of the European court were also in the name of an identified judge?

[Baroness Williams of Trafford (Con)]

I used to be so grateful to have my noble friend beside me. I am now very grateful for his wisdom behind me, and he is absolutely right.

Queen’s Speech

Lord Wolfson of Tredegar Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a great pleasure to follow the right reverend Prelate. I declare my interest as a practising barrister, in what is my maiden speech from the Back Benches. I do not know whether the convention against controversiality therefore applies to me, although as the formal Motion before the House is to propose a humble Address to Her Majesty, nothing can be less controversial, or indeed command more unanimous acclaim.

I would like to say a few words about the proposed measure to replace the Human Rights Act with a Bill of Rights. I am conscious that having done, let us say, a fair amount of work in this area while serving as a Minister, I feel a little like the expectant father who, having seen the 30-week scan, now paces anxiously outside the delivery room to see what on earth has happened in the meantime. I hope that the Bill will be delivered both safely and in rude health but, as we wait for it, a little historical context might be in order.

It might come as a shock to some commentators, but human rights did not begin in 1998 with the passage of the Human Rights Act. The UK signed the European Convention on Human Rights in 1950, and extended the right of individual petition to the European Court of Human Rights in 1966. What really changed in 1998 was the ability of individuals to vindicate their convention rights in the UK courts, rather than having to get a train to Strasbourg. As we have heard again this morning, the UK will remain a signatory to the convention, and convention rights will still be enforceable in our courts. One might therefore ask what all the fuss is about.

One answer is that, rather like the Judicial Review and Courts Act in the last Session—and I declare an appropriate interest there as well—too many commentators appear to work on the basis of, “Tweet first, read the Bill later”. Others take it as axiomatic that anything emerging from a Conservative Government must be bad, although it was a Conservative Government who signed and ratified the European convention in the first place. The truth is that human rights remain controversial because the subject is often the place where law and politics meet—and I shall make four short points in that context.

First, human rights law is often seen as something which causes problems rather than provides protections. People moan about “human rights” in the way that they moan about “health and safety”, although I suspect that the absence of either would cause them problems—they would miss both if they were not there. I do not put all our current constitutional problems at the door of the noble and learned Lord, Lord Falconer of Thoroton, who will speak next, although the rather attenuated role of the modern Lord Chancellor is one of them, but he might agree with me that, in retrospect, the language of “bringing rights home”, used for the 1998 Act, was unfortunate because it cast human rights as a foreign implant in our legal soil, whereas in truth many of them actually have firm jurisdictional roots in this country and have been grafted on and become part of our common law tradition.

Secondly, as often with law, the issue is frequently not the rights themselves but the way they have been interpreted, a point made forcefully in several papers from Policy Exchange. That is because the Strasbourg court uses the living instrument theory when interpreting the convention, which ends up with that court deciding what additional rights it thinks a modern democracy ought to have, and which, necessarily, are not found in the text of the convention itself. So, the convention has been held to apply extraterritorially—for example, to British Army bases in Iraq—despite there being no basis in the text for that conclusion. Rights in the text are given a radically new meaning. Article 8, which was obviously intended to protect personal and family life from the surveillance of totalitarian regimes, is now found to extend to noise abatement issues, the legal status of illegitimate children and the non-payment of rent. Those issues are important, but my point is that in a democracy they are better resolved not in a courtroom but in a parliamentary Chamber.

That brings me to my third point. Law is sometimes messy, and politics, as I now know only too well, can be messier. But politicians—at least, some of them—are elected, while judges are not; politicians can be removed, judges cannot. I value our judges enormously, even when, perhaps especially when, they decide against my clients. But it is because of that respect that I do not want to see judges being pulled into what are essentially political or moral issues: these should be decided here and not on the other side of Parliament Square.

My final point is that debate is good, both here and in the public square, both the physical and the online public square. When the Bill of Rights is laid before Parliament, I want to see an energetic public debate. As has been said, free speech is the cornerstone of rights; the right, ultimately, on which all other rights depend. I therefore wait with interest to see how that proper emphasis on freedom of expression is to be squared with the apparent approach in the Online Safety Bill to limit speech which is deemed—I am not sure by whom, where or on what basis—to be entirely lawful but none the less harmful. I take the view that people need to know what the boundaries are, and those boundaries we call “law”. Legal consequences should follow only when legal boundaries have been breached. That is, I suggest, part of a society governed by the rule of law.

We heard the prophet Amos quoted a few moments ago. I will conclude with the psalmist, for whom justice and law are the foundation of God’s throne, of which Her Majesty’s Throne in this Chamber is a constant reminder. I suggest that justice and law are, and should be, the foundation of our society as well.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Consideration of Commons amendments & Lords Hansard - Part 2
Tuesday 22nd March 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 107, to which the Commons have disagreed for their Reason 107A.

107A: Because the amendment is unnecessary as there is no legal barrier to local authorities setting up and running academies.

Motion K agreed.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Consideration of Commons amendments & Lords Hansard - Part 1
Tuesday 22nd March 2022 Lords Chamber

Motion C

[Lord Wolfson of Tredegar]

Moved by

That this House do not insist on its Amendment 71, to which the Commons have disagreed for their Reason 71A.

71A: Because police officers are already subject to a duty to cooperate during investigations, inquiries and formal proceedings and it would be premature to add to such provision pending further consideration by the Government.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I will also speak to Motionexpand-col4 K on secure schools, which is in this group.

The House will recall that Amendment 71 would introduce a duty of candour for the police workforce. The other place has now considered this amendment and rejected the proposed duty, without, I might add, putting the amendment to a vote.

The Government take police integrity and accountability extremely seriously. As has been outlined to the House previously, in February 2020 we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020, and therefore has the force of law.

For the benefit of the House, I will reiterate the extent and focus of this duty. It says:

“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness”.


A failure to co-operate is a breach of the statutory standards of professional behaviour by which all officers must abide, and could therefore result in disciplinary sanction. I therefore suggest again to the House that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in Amendment 71, because a breach of this duty could ultimately lead to dismissal. We are reluctant to dilute the existing measures in place to compel individual officers to co-operate.

This duty to co-operate was introduced in 2020, after the issues highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel. We are keen that this duty becomes rooted within the police workforce before considering any further changes to legislation. The recently commenced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a proper test for this duty. Noble Lords will also be aware that a response to the Daniel Morgan Independent Panel and the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public bodies. Before the Government respond to these reports, it is of course imperative that the Hillsborough families are given the opportunity to share their views.

We will continue to assess the impact of the existing duty on police co-operation with inquiries and investigations. As we consider the case for a broader duty of candour for public servants and bodies, we will determine whether the existing duty is sufficient to ensure public confidence. As for timing, I can assure the House that we will set out our conclusions later this year.

Given these considerations and the decision of the elected House, I respectfully ask the House not to insist on Amendment 71.

Turning to Amendment 107, the House will recall that the amendment sought to confirm that local authorities can establish and maintain secure 16 to 19 academies, either alone or in consortia. The elected House disagreed with this amendment by a substantial majority of 190. In inviting this House not to insist on the amendment, I remind noble Lords that there is no legal bar preventing a local authority setting up an entity capable of entering into academy arrangements directly with the Secretary of State, or indeed doing so itself. This is not prevented by the Academies Act. I therefore ask the House not to insist, on the grounds that this renders the amendment unnecessary and it could have disruptive consequences for the academies legal framework.

I appreciate that existing government policy is not completely aligned with the spirit of this amendment. But I want to be positive, and recognise the expertise of the local government sector and the critical role that it already plays. Local authorities have a long-established role in children’s social care and the provision of secure accommodation for children. I should therefore highlight that, in practice, there are already important ways in which local authorities can be—and already are—involved in academy trusts, which we would certainly be open to utilising also in secure schools. Trusts can, and do, procure services from local authorities; some local authorities have established spin-out companies specifically to provide services to trusts and maintained schools alike. In principle, there would be nothing to prevent a spin-off company entering into an agreement with the Secretary of State for Education to establish an academy trust.

Our vision for secure schools is to take a new and innovative approach to the delivery of youth custody and to engage visionary, child-focused providers—many of which are charities—in the running of establishments. It would therefore certainly be possible, for example, for a charity and a local authority to come together to put forward a bid to establish a trust in which both parties could have some involvement across both the governance structure and the delivery of services.

--- Later in debate ---

[Lord Rosser (Lab)]

There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.

As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.

On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.

The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice

“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]

The Minister also made that point.

Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.

We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lords who took part in this debate. I will take matters fairly briefly, given the amount of other business before the House.

On the duty of candour, I emphasise the essential point that the disciplinary system provides clear sanctions that can lead to dismissal. We should not introduce criminal sanctions for the police alone. Ultimately, the inspectorate can determine whether forces are following the guidance. We will monitor that extremely carefully.

I do not want to take up the House’s time too much on the report, which has been published in the last half an hour. My right honourable friend the Home Secretary has already issued a statement, which noble Lords will be able to find online, but my understanding is that the Metropolitan Police has 56 days to respond formally to the report. The Home Secretary will of course return to Parliament to provide a full government response once the final report and responses have been received.

I am grateful to all noble Lords for their engagement on the issue of secure schools. I have tried to set out the legal position clearly. I hope that the undertaking that I have set out will be sufficient. Again, with apologies to the House for not dealing in too much detail with the new report, because I am sure there will be other opportunities to debate it, I beg to move.

Motion C agreed.

Nationality and Borders Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

[Lord Berkeley of Knighton (CB)]

My Lords, I will make a few comments to amplify the remarks of my noble friend Lady Meacher. I have just been reading a most remarkable book by a doctor, who as an eight or nine year-old child escaped from Afghanistan to try to realise his vision of becoming a doctor and thus being able to support his family back in Afghanistan. In trying to secure a voyage here, the bureaucracy of our immigration system, which I am afraid is outrageously being demonstrated in Calais, meant that this child fell into the hands of traffickers. He arrived here with a forged passport, so was sent to Feltham young offender institution. My point is that unless we improve our ability to admit refugees—particularly at a time like this, as we have heard today—we will play into the hands of these people. Like that child, so many of these refugees are just desperate for a better life; he wanted to support his family.

That child had experienced post-traumatic stress disorder of the most awful sort, having seen friends and relatives bombed and shelled and having walked among mutilated bodies. He had nightmares and flashbacks, but he did not know that he had post-traumatic stress disorder and could not understand why he was finding it so difficult to explain to the authorities that he had come from this troubled background. It was only years later, as the noble Baroness, Lady Meacher, mentioned, that he realised that it must be because of post-traumatic stress disorder.

This extraordinary person started the most wonderful foundation, Arian Teleheal, saluted by the Government, which does telemed work with children and victims all over the world. He is a wonderful example of everything which is great in this country and everything that we need to make better. He knew that if he could get here and get training as a doctor, he could change the circumstances of those he had left behind in Afghanistan —and my goodness, he did. However, we must make it easier for people such as him to come here and benefit from our education, and then do wonderful work, such as what he wanted to do, as a doctor.

[Lord Wolfson of Tredegar (Con)]

My Lords, the debate has shown that the House is unanimous on two points. The first is that my noble friend Lady Williams of Trafford should be congratulated, and the second is that the House did not much like the Government’s Bill. I associate myself wholly with the former, and I will seek to set out the Government’s position on the latter. Let me go through the amendments in turn.

Amendments 65 and 66 seek to remove Clauses 57 and 58 from the Bill entirely. The effect would be to remove modern slavery from the one-stop process and would mean that modern slavery claims would be dealt with separately from the one-stop process that addresses human rights and protection claims. That does not make much sense, for either the victims or the national referral mechanism, for at least two reasons. First, treating the two types of claims as distinct means that a victim might have to describe the same traumatic events repeatedly, which nobody wants to see. Secondly, decisions would be made about their future and their right to protection and support in isolation from, and perhaps in ignorance of, the full facts, which might mean that people who would otherwise get protection are denied it.

Those amendments, and Amendment 70ZA, do not make sense from the point of view of making the NRM an efficient, transparent and fair process. They display a lack of understanding about how the NRM works, where, in line with the low threshold for referral—I will come back to the thresholds later—we simply require relevant information at an early stage, even of a limited nature, to enable key issues to be identified from the outset. That allows early access to support and gives decision-makers a clearer picture of the individual’s experience, which in turn means a more comprehensive decision, to be taken in the round, including, crucially, the victim’s age when the relevant exploitation took place.

Perhaps more than any other group, children will benefit from early identification and protection, and from having decisions made in respect of their status and their support with as full an awareness of relevant facts and context as possible. In response to the concerns of the noble Lord, Lord Coaker, echoed by the right reverend Prelate the Bishop of Durham, we see no benefit to child victims in them raising modern slavery issues after any asylum or protection decisions have been made. That would only delay their ability to access the support and protection that they need.

I have read widely the briefings which I and other noble Lords have received, and seen that critics have argued, as has been said, that the clause will stop victims from coming forward. We do not see how a clause that encourages early disclosure of information and early identification, where any negative credibility implications are non-determinative and apply only when there are no good reasons for delay, would discourage victims from coming forward. As to evidence, I say again that the measure will allow for early identification, and we do not want victims to have to describe the same events repeatedly.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

I am sorry to interrupt but will the Minister deal with why children are going through the NRM? The Home Office, through the Minister, told me that the NRM was not suitable for children, who should be dealt with under the Children Act.

[Lord Wolfson of Tredegar (Con)]

I do not think I am saying anything inconsistent. I am saying that, for the reasons I have set out—I was just starting on the point and hope I will be able to develop it—we do not want to create a two-tier system. Of course, we recognise the vulnerabilities of children. The modern slavery statutory guidance, which I think the noble and learned Baroness referred to, provides for the specific vulnerabilities of children. This clause does not change that. It is also right that our domestic legislation should align with our international obligations, and that includes ECAT. Children get protection from the NRM because they are recognised as victims of modern slavery; that is why they get protection.

On Amendments 67 and 68, I want to reassure noble Lords that we are currently working with stakeholders and operational partners to develop the guidance in a way that is clear for decision-makers and victims. The reasonable grounds threshold is, and will remain, low, as intended by ECAT, to identify potential victims. The House will forgive me, but we need to be clear about this: ECAT sets out that signatories have certain duties when there are reasonable grounds to believe that a person has been a victim or “is a victim” of modern slavery or human trafficking. The right reverend Prelate the Bishop of St Albans raised concerns that Clause 59 was raising the threshold. Respectfully, it is not. Clause 59 aligns the Modern Slavery Act 2015 with ECAT, but it is already the language used in the modern slavery statutory guidance for England and Wales, under Section 49 of that Act.

Indeed—I have it on my iPad—paragraph 14.50 of the guidance sets out the test of

“whether the statement …‘I suspect but cannot prove’ the person is a victim of modern slavery … is true ... or whether a reasonable person having regard to the information in the mind of the decision maker would think there are Reasonable Grounds to believe the individual is a victim of modern slavery”.

So, in the guidance, the two tests are each used; we are not raising the test at all but aligning it. Nothing will change in practice; we are aligning our domestic legislation to our international obligations. The guidance also uses the phrase “suspect but cannot prove” as part of the test. Both phrases that I have read out are used in the guidance as being indicative of when the threshold is met. We are not raising the threshold and have no intention of doing so, but it is right that we keep setting that out in guidance and not in primary legislation.

Turning to Amendment 70, I thank my noble friend Lord McColl of Dulwich for his continued engagement. We are of course committed to providing support to victims of modern slavery but we believe that this should be provided on a needs basis. We are committed to maintaining our international obligations under ECAT, and this Bill confirms that, where necessary, support and protections are provided from a positive reasonable grounds decision up to the conclusive grounds decision. Indeed, there is a five-year contract, currently valued at over £300 million, which demonstrates that commitment. Importantly, however, support for victims, including safehouse accommodation, financial support and access to a support worker are already available based on need. There is no time limit for that support.

Each individual victim will have different needs. The amendment, however, removes any needs-based assessment and treats all 12,727 victims who entered the NRM in 2021 as being one of a kind, assuming that they will all need the same level of support. We committed in the other place to providing, where necessary, appropriate and tailored support for a minimum of 12 months to all those who receive a “positive conclusive grounds decision”, and I have just repeated that here.

Finally, Amendment 70 would also reduce clarity, because it refers to assisting the individual in their personal situation. There is no definition of “personal situation” within ECAT, and Clause 64 addresses this issue by setting out circumstances where leave will be granted to confirmed victims. However, Amendment 70 requires no link to the relevant exploitation, which means that a victim could be granted leave to pursue an entirely unrelated compensation claim or assist with an unrelated investigation, and that is not what ECAT was all about.

Before I sit down, I should respond to the noble Lord, Lord Alton of Liverpool, and the right reverend Prelate the Bishop of Durham, as well as the noble and learned Baroness, Lady Butler-Sloss, who all mentioned guidance in one form or another. I can confirm that officials would be very pleased to engage on the development of the guidance, to which I have referred on a number of occasions. It will be published over the coming months, but we welcome that engagement. I also assure them and the rest of the House that we will bring forward modern slavery legislation as soon as parliamentary time allows.

I apologise for the length of my response, but there were a number of amendments in this group. For the reasons I have set out, I invite noble Lords not to press their amendments.

[Lord Coaker (Lab)]

My Lords, I shall just respond to the Minister briefly. I thank him for his reply and all noble Lords who have contributed to the debate.

The one fundamental point that I wish to make to the Minister is that, in all his responses, he failed to talk about the statistic referring to the dramatic increase of 47% in the number of victims, in the duty to notify process, who refused to consent to their names being put forward to the national referral mechanism. That is 3,190 reports of adult potential victims via that process who did not consent to their names being put forward. The Minister did not refer to that—and at its heart that is because people already, before the implementation of the Bill, are frightened to come forward and interact with the Government. That is the reality of the situation. For all the Minister’s protestations and reassurances, and all the statements that it will be done on a case-by-case basis, it does not alter the fact that already people are frightened of coming forward and being identified.

All the amendments before us seek to do is to address some of that problem. For example, Amendment 66, on which I will wish to test the opinion of the House, addresses the legislation where it says that if the people who do interact are late in providing information, they will be penalised and it must be taken into account and their claim refused. We are told that it does not matter because, on a case-by-case basis, they can be reassured—yet we are going to pass primary legislation to say that that provision must be included.