Illegal Migration Bill

Debate between Lord Wolfson of Tredegar and Baroness Ludford

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Baroness, Lady Chakrabarti, threw down a verbal gauntlet, so let me try to pick it up and answer the central question that she posed. That was this: why should the UK think that it does not have to abide by Rule 39 indications from the court in Strasbourg? The short answer is that the Strasbourg court does not have jurisdiction to grant those Rule 39 indications and certainly not in the manner in which they are currently granted. I will develop that point shortly, but the fact that it is a jurisdictional point—I would say, with respect, that jurisdiction ought to unite all lawyers, even commercial lawyers—means that whether the court has jurisdiction or not is pretty important. I will focus my remarks on Clause 53 and the amendments thereto. I yield to nobody in my respect for the rule of law.

There is a great danger, which happens here and in other places, of the following syllogism being rolled out: the rule of law is a good thing, this—whatever issue you are talking about—is a good thing and therefore this is part of the rule of law. Well, it is not always. Even what is incorporated within the rule of law is a matter of some debate. One can compare the famous work of Lord Bingham, which is expansive to the work of Sir John Laws, which is rather narrower. But this is not about whether we have respect for the rule of law. It is about whether the Strasbourg court in fact has jurisdiction. To put the matter in that way shows respect for the rule of law, because jurisdiction is fundamental to that. Certainly, as far as I am concerned—I am sure as far as the Minister is concerned as well— words such as “game” and “swindle” are not entirely appropriate ways of approaching this topic.

I spoke on this point on Second Reading; we are now in Committee and I am not going to give a Second Reading speech. I expanded on it for those few people who did not read Hansard in the Daily Telegraph a week or so ago. What happened since Second Reading —I touched on it in my piece in the Telegraph—is, as my noble friend Lord Sandhurst mentioned, a powerfully argued paper from Professor Richard Ekins at Policy Exchange. It is unfortunate that in opening the debate on this the noble Baroness, Lady Chakrabarti, did not engage with any of the arguments in that paper; I do not think that she even mentioned it. The paper is a fine piece of legal work. You can agree or disagree with the conclusions. I am going to be disagreeing with the conclusions of the Joint Committee on Human Rights. That, I hope, does not indicate any disrespect or discourtesy towards any of the people who sit on that committee; I just disagree with their conclusions. But I am going to deal with their argument because, if I do not, it is difficult to see how the land actually lies. Again, as my noble friend mentioned, we have a preface and a foreword by Lord Sumption the noble and learned Lord, Lord Hoffmann, two names that, frankly, should make any lawyer sit up and take notice. Even if one does not agree with the conclusion, one has to engage with the arguments.

The main thrust behind the amendments and the clause stand part debate is that the clause breaches international law. That raises the question of whether we have an international law obligation to abide by Rule 39 indications. The short answer is that, no, we do not. Why do we not? Because we have signed up in the convention to abide by judgments of the Strasbourg court against the UK and Article 46(1) where the judgment is of the full court. This is not a final judgment—it is not of the full court—so we have no obligation under Article 46(1).

The Strasbourg court then tries to ground its jurisdiction in Article 34. The reason why it does that— I will not repeat what my noble friend said—is that there is a history to this. There was a suggestion in the draft, back in the 1940s, that the court would have the right to give interim relief. That was deliberately excluded. People tried to persuade the court that it should have that power, but that was rebuffed. The court gave a series of judgments setting out that it did not have that power, but then it did a volte-face and by a majority—I think of one, but I may be mistaken—it held that it did have that power. Of course, the court can change its own jurisprudence, but what it cannot do is to arrogate to itself the jurisdiction. In international law, the court has only the powers that the member states have given to it.

What does the court do? The court seeks to ground its power in Article 34 of the convention. What is Article 34? It is the right not to have your right of access to the courts impeded. I accept that there will be cases where you could justify interim relief and Article 34; a death penalty case would be one of them, as you cannot unscramble that later on, for obvious reasons. However, there will not be many cases like that. The Rwanda case last year was not a case like that. That was a case where the High Court, the Court of Appeal and the Supreme Court had all held that the Government’s promise to bring people back if they were to win meant that there was no impedance of their human rights. That point was decided three times in this jurisdiction, so that was certainly not an Article 34 case.

It also does two other things. First, it shows that if the Strasbourg court is doing a balancing act under American Cyanamid, it is odd that it reached completely the opposite conclusion from that reached by three courts here when applying that approach. Secondly, it belies another point put to the Committee by the noble Baroness, Lady Chakrabarti, in relation to Clause 52. She made the point that if courts here have the ability to grant interim relief, Strasbourg will not interfere. Three courts here heard the Rwanda case and Strasbourg still interfered. I am not sure that that argument works.

Where I agree with the noble Baroness, Lady Chakrabarti, is that there is a procedural problem as well as a substantive problem. The procedural problem cannot solve the jurisdictional problem but makes it worse. Why is there a procedural problem? There is a procedural problem because the rules and procedures do not cater for this jurisdiction, as it has been created out of whole cloth. That is why we have a system at the moment where there is no effective natural justice, where these injunctions are given and indications are made without the state being heard and, importantly, without there being a proper opportunity for the state to put its case even after the indication has been made. That is why these orders are given by a single judge when—the detail is in Professor Ekins’s paper—under the structure of the Strasbourg court a single judge should not have and does not have the powers to do this.

Does this mean that there are no circumstances in which a Rule 39 order can be justified? No, I do not go so far as that. I have already identified a death penalty case as such a case. However, one needs to have a proper review of the court’s jurisdiction. One also needs to have a proper procedure; again, I agree with the noble Baroness, Lady Chakrabarti, who said that it ought to be possible to create such a procedure. It ought to be possible and it must be possible. If one therefore has a Rule 39 indication with a proper procedure which is grounded in Article 34, which recognises the principle of subsidiarity that is now inherent in the court’s jurisprudence and which gives the state an opportunity to come back in a proper timeframe against the order that has been made, I suggest all of that is the way through.

I will take two minutes, if I may, to say something about the report of the JCHR, because it is an important piece of work and I have read it carefully. On page 45, there is a heading before paragraph 129:

“What are the legal implications of this clause?”


This is Clause 53. It goes on to say that some commentators have suggested that

“the UK is not bound to comply with”

Rule 39 orders. It goes on:

“This is particularly because Article 46 of the Convention, which concerns the ‘Binding force and execution of judgments’, only commits the UK to abide by ‘the final judgment of the Court’ and does not mention interim measures”.


I agree with that, except it is only judgments against the UK, but we will let that pass. It goes on to say that the Grand Chamber in Strasbourg

“has held that a failure to comply with interim measures would amount to a violation of Article 34”.

That is right; that is what it has held. It goes on to say, in paragraph 130:

“It is therefore a binding obligation, as a matter of international law, for the UK to act in accordance with interim measures”.


What is the force of that “therefore”? Because the Strasbourg court has held—in the last sentence of paragraph 129—that it would be a violation of Article 34, it is therefore a binding obligation. With the greatest respect to the Committee and whoever authored that part of the report, that is what—before the noble and learned Lord, Lord Woolf, banned the use of Latin in our domestic courts—used to be called an ipse dixit. That “therefore” is a conclusory statement; you simply cannot justify the jurisdiction by saying that the court itself says that it has jurisdiction. That is an entirely circular argument. If I could win all my cases with reasoning like that, it would be a very good thing, even though I am only a commercial lawyer.

[Baroness Ludford (LD)]

I beg the noble Lord’s indulgence in standing up and asking him a question. I was piqued by a tweet by the noble Lord, Lord Anderson of Ipswich, who is not in his place. He intervened on a Question from the noble Baroness, Lady Chakrabarti, last Tuesday. The noble and learned Lord, Lord Bellamy, was replying. The noble Lord, Lord Anderson, pointed out:

“The member Governments of the Council of Europe, including our own, have repeatedly confirmed the binding nature of interim measures under Rule 39—in the Committee of Ministers, and in the Izmir and Brighton declarations. Is the Minister proud of the United Kingdom’s record of compliance with interim measures?”


The noble and learned Lord, Lord Bellamy, replied:

“On the general point about acceptance in practice of the position of interim measures under the convention, there are two legal views”.—[Official Report, 6/6/23; col. 1244.]


The noble Lord, Lord Wolfson, and others have talked about the paper by Professor Ekins for Policy Exchange and that is a view, but the Minister did not confirm last week that he shared that view. Clause 53 does not actually say that the Government think that interim measures from Strasbourg are not binding. The tweet by the noble Lord, Lord Anderson, noticed that the Minister

“declined to commit to the long-standing governmental position that”

interim measures

“are binding in international law. Views can always change, but surely the government has one”.

What we have not established is what the view of the Government, as opposed to that of Policy Exchange and Professor Ekins, is on whether interim measures from Strasbourg are binding. Our long-standing practice has been to comply with those interim measures. That is what is more important. With full respect to Policy Exchange and Professor Ekins, that is all very interesting, but what is the Government’s view? I do not think that what we are getting out of this whole affair is finding, among this thicket of confusion, what the position of this current British Government is on whether interim measures from Strasbourg should be observed. Indeed, on the Rwanda case, they did observe them, so that is quite different from commentary from Policy Exchange.

Illegal Migration Bill

Debate between Lord Wolfson of Tredegar and Baroness Ludford

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid I rise again to make a point that really should not have to be made. I made the point on a previous group that we are a dualist state where international law is not part of domestic law unless and until it is so incorporated by this Parliament. Later, perhaps in a question, the noble Baroness, Lady Chakrabarti, rather poured scorn and said that this was some sort of technical dualist point. It is not a technical dualist point; it is a fundamental part of our constitution.

Another fundamental part of our constitution is that, when we sign up to international treaties such as the Vienna convention, we have to look at what they actually say. This is not an Oxford Union debating point for two reasons: first, it is far more important than that; and secondly, I have never been a member of the Oxford Union. Article 31 of the Vienna convention, on the interpretation of treaties, says:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.


Each state therefore has to interpret its obligations under a treaty.

Some treaties, such as the European Convention on Human Rights, have a court attached to them. If you sign that treaty and sign up to the court, you are obliged to abide by the rulings of the court, in so far as those rulings emanate from the treaty. For example, Article 46.1 of the European Convention on Human Rights provides that the UK has to abide by any judgment given against the UK by that court. That is what we signed up to in the treaty. The refugee convention does not have a court attached to it. Therefore, this country, like every other, has to interpret the treaty bona fide—in good faith.

What, then, is the position of the UNHCR? It is exactly as the noble Baroness, Lady Chakrabarti, read out from the treaty, but it is not the gloss that she put on it. The word “interpret”, which she used in her speech, does not appear in the treaty. That is not an accident, because the states were not going to give the UNHCR the power—[Interruption.] I will give way if the noble Baroness, Lady Chakrabarti, wants to make an intervention; otherwise, I cannot hear her.

[Baroness Ludford (LD)]

If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:

“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”


I suggest that that is not a million miles from assisting in the common interpretation of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

[Baroness Ludford (LD)]

The noble Lord is a good lawyer and I am not, and I know that time is pressing on. However, it says more than just that we should co-operate with the UNHCR. It asks contracting states to facilitate the UNHCR’s

“duty of supervising the application of the provisions of this Convention”—

I emphasise “supervising”. I do not know how that terminology was arrived at but it is saying more than that the UK must co-operate with the UNHCR. The UNHCR has a sort of supervisory duty, and I think that is more than what the noble Lord is saying.

[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

Illegal Migration Bill

Debate between Lord Wolfson of Tredegar and Baroness Ludford

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

I am grateful to the former Minister and sure that he listened carefully to how Section 19 was introduced into the deliberations of the Committee earlier, not least by the noble and learned Lord, Lord Hope. Members of the Committee have been pointing to the contradictions in the Government’s position around the compatibility of this Bill—Section 19(1)(b) on the tin and then something else in the ECHR memorandum. It is the clarity of the Government’s belief that Members of the Committee have for some hours this afternoon been looking for.

[Baroness Ludford (LD)]

To avoid the noble Lord, Lord Wolfson, having to be up and down too many times, I will jump in here. The noble Lord, Lord Carlile, pointed out that the Secretary of State’s inability to make a Section 19(1)(a) declaration was in relation to only one clause. The content of that clause was the proposed ban on political advertising across all broadcast media. One can see why that might inhibit a Section 19(1)(a) declaration, but it is not on the same scale as what many of us in this Chamber this afternoon maintain are the various and extremely serious breaches of the European convention commitment. It is apples and pears, or chalk and cheese—I am mixing my metaphors horribly. It is not a good precedent for saying why there cannot be a declaration of compatibility for this Bill. It is not on the same scale.

[Lord Wolfson of Tredegar (Con)]

I am grateful for that shortish intervention. Essentially it raises the same point that the noble Lord, Lord Carlile, put to me and, without any disrespect, I give the same answer. I am focused, as a matter of principle, on what Section 19 does.

Amendment 2, which has already been referred to by my noble friend Lord Sandhurst, disregards Section 3 of the Human Rights Act 1998, which is a very odd section. Uniquely in our law, it requires that other Acts of Parliament be interpreted:

“So far as it is possible to do so”


in accordance with the convention rights. We do not do that in any other area of our law.

The case law under Section 3 is extremely complex. As has been referred to before, Sir Peter Gross set this out in his review of the Human Rights Act. I would be entirely content if I could be sure that the current law on what Section 3 does remains the law. What we have seen, however, when we look at Ullah, Al-Skeini or other cases, is that what Section 3 means and how it is interpreted by the courts has moved. In those circumstances, the Government are right to exclude Section 3 of the Human Rights Act from the Bill by way of its Clause 1(5).

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Baroness Ludford

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

I was going to come to the point made by the noble Lord, Lord Rosser. Let me just say a sentence about it now: the UNHCR is not the interpretive body of the refugee convention. Each state under the convention is there to interpret its obligations, in accordance with the Vienna convention. That is the system which the state parties have set up. When we have a phrase—we will get to one a little later—such as “serious non-political crime”, the state parties have to interpret it. We will get to an example in the next group—this is a little cliffhanger—of where different countries have approached the question differently. There is nothing wrong with that, provided that they are all acting in accordance with the Vienna convention in good faith in seeking to interpret their obligations.

Respectfully, I think that the noble Lord, Lord Anderson of Ipswich, essentially accepted that basic proposition under the Vienna convention, and he was obviously right to do so. He sought characteristically carefully—if I might say so—to seek disclosure of the legal advice on which the Government are relying, while recognising the conventions which apply to that. I listened carefully to what he said. I will read Hansard to see whether there is anything more I can say in writing to him; I do not want to rush from the Dispatch Box. There may or may not be anything more I can say, but I will read that point carefully. I think he recognised that there are conventions in this area which do apply.

However, I say to the noble Lord, Lord Paddick, that it is not a question of having to agree with all the other signatories. This is not about amending the refugee convention; it is about interpreting it. That is a very different thing. If you want to amend a contract, you need the other party’s agreement, but interpreting a convention is for each state party.

I will say a few words about the substantive clauses, although I think it is fair to say that those were not really the Committee’s focus. Clause 29 sets out how key terms which are defined in the following clauses will be applied; they are the key components of the refugee convention. Clause 29 also revokes the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Those are the regulations through which we transposed our obligations under the EU qualification directive 2004. Because we are out of the EU, we need to do that in a different way.

However, we will continue to grant humanitarian protection to eligible individuals who cannot be removed from the UK to their country of origin if their removal would breach the UK’s obligations under Articles 2 or 3 of the ECHR. It is important to clarify—I am sure Members of the Committee know this—that these are not individuals protected under the refugee convention. However, we will make further changes to align the entitlements of permission to stay granted on the basis of humanitarian protection to that provided to group 2 refugees.

In response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we believe that Clause 33 provides a system of effective protection from persecution. Clause 34 deals with relocation, but I do not think any noble Lords spoke to it directly, so I will just refer to it and move on.

On Clause 35, of course we have a proud history of providing protection to those who need it, but that should not apply to those who commit serious crimes, putting the communities that host them at risk and endangering national security. We believe we are right to define and legislate in this area. I say to the noble Baroness, Lady Hamwee, that that is a good example of serious non-political crime. That is a phrase in the refugee convention, but it is not further defined in it. Each state has to look at it and define it, in accordance—always—with the Vienna convention.

[Baroness Ludford (LD)]

The Minister keeps saying that each state will define the refugee convention, and he alluded to the EU qualification directive; there is also the procedures directive. I declare an interest, as I worked on both directives as an MEP. Of course, that was an attempt not for each state in the EU to do its own thing but to have a collective set of laws which interpreted the refugee convention in detail and, as far as I know, complied with it. That prevented each country doing its own thing in a potentially destructive way.

[Baroness Hamwee (LD)]

I have an associated point, to save the Minister bobbing up and down too much. I entirely take the point about non-political crime. I just wanted to make it clear that I was referring only to that bit of the Bill when I mentioned the case. I was not suggesting that it was the prompt for the whole of this part. But can the Minister explain more about the impact of our leaving the EU? Does that give us a legal opportunity, or is this happening because it is a convenient political point in the calendar, as it were?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not sure whether it is the time of the evening that prompted that reference to dinner; otherwise, it is not immediately apparent to me what the relevance of it was. I will come back to that rather less substantive point—if I may say so, respectfully—at the end.

Let me deal first with Clause 31. I am grateful to the noble Lord, Lord Dubs. He is right that there are points of principle that underlie these amendments; they underlay the last group as well. I too will try not to repeat the points that I have made. There are points of principle that are at issue between us, and we have set out our respective positions. We believe that the test set out in Clause 31 is compliant with our international obligations. More specifically, we believe that it will provide, and lead to, better decision-making, because it sets out a clear test, with steps for decision-makers, including the courts, to follow. That will lead to greater consistency.

Turning to Amendments 103 and 104, although I listened very carefully to the noble Lord, Lord Dubs, and I agree with the importance of us carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the convention, we do not agree with these amendments because, taken together, they will essentially maintain the current standard of proof system. In so far as my noble friend Lady McIntosh of Pickering said that it was, to a certain extent, a probing amendment, let me try to explain.

First, this is not about setting aside decisions of the court. The courts are there to interpret the legislation as it stands—that is what they do. Parliament is entitled to change the legislative background, in so far as it is consistent with our treaty obligations. Clause 31 sets out a clear, step-by-step process. I hear the point made by the noble and right reverend Lord, Lord Sentamu, that it should be—so far as legislation can be—in simple language and a clear test. The problem at the moment is that there is no clearly outlined test as such. There is case law, there is policy and there is guidance in this area, but the current approach leads to a number of different elements being considered as part of one overall decision. What we seek to do here is to introduce distinct stages that a decision-maker must go through, with clearly articulated standards of proof for each. We believe that this will lead to better and more consistent decision-making.

At its core, in Clause 31(2) we are asking claimants to establish that they are who they say they are and that they fear what they say they fear to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts, and those are facts in Clause 31(2); namely, more likely than not. It is reasonable, I suggest, that claimants who are asking the UK for protection are able to answer those questions. We have looked carefully, of course, at the often difficult situations that claimants might come from and the impact that might have on the kinds of evidence that they can provide. However, we consider that our overall approach to making decisions, which includes a detailed and sensitive approach to interviewing, allows all genuine claimants an opportunity to explain their story and satisfy the test.

There is international precedent that supports our decision to raise the threshold for assessing the facts that a claimant presents to us to the balance of probabilities standard. Both Canada and Switzerland—highly respected democratic countries, dare I say it—have systems which examine at least some elements of a claimant’s claim to this higher standard. Respectfully and rhetorically, let me ask this of the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle. The noble Baroness, Lady Ludford, said that this was confusing and complex. The noble Baroness, Lady Bennett of Manor Castle, said that she had horror at it. The higher standard is used in Switzerland. Does the horror extend to Canada and Switzerland as well? There is nothing wrong in principle with adopting the higher test for some parts—I will come to it in more detail—of the decision-making tree.

[Baroness Ludford (LD)]

Does the Minister recall that I did not just say that it is about the higher standard? It is about having different limbs and different requirements under those different limbs, and switching from “reasonable likelihood” to “balance of probabilities” as part of the composite test, which is not holistic but is in different parts. That is what is confusing, not just a change in the standard of proof.

[Lord Wolfson of Tredegar (Con)]

My Lords, with the greatest respect, it is not confusing at all, because Clause 31(2) establishes the facts, and that is all a balance of probabilities. Then, in Clause 31(4), the decision-maker turns to questions of the future. It is at that stage that the reasonable likelihood test is the appropriate test, because the decision-maker is looking to assess what might happen in the future. That is why we have a lower test at that stage. It is quite usual in law to have different stages of a test and different levels of probability at each.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am certainly not trying to be flippant. What I am saying is that we have a refugee convention that sets out our international obligations. We are abiding by those international obligations. It may—I underline “may”—be that a convention entered into in 1951 is not absolutely suitable for the world of 2022. That might be the answer. At the moment, however, my focus as a Justice Minister is on making sure that this country abides by its international obligations, and that is what we are doing. I invite the noble Baroness to withdraw the amendment.

[Baroness Ludford (LD)]

My answer to that last point is that if that is what the UK Government feel, they should convene a conference to renegotiate the refugee convention, but they are not doing that. A large number of noble Lords in this Committee believe that the Government are riding roughshod over the refugee convention in a way that demeans this country and sets an extremely poor example, not least to those countries on the front line, which are taking the overwhelming majority of people seeking protection. We have bandied around the statistics in the last few days in Committee, but we are not in the top category of countries in terms of the numbers, which are manageable. They would be particularly manageable if the Home Office got its act together in the way it decides asylum cases initially—if it invested in the initial consideration of the claims and did not make the law ever more complex, with ever more delays and ever more prospects of litigation. It seems we are banging our heads against a brick wall somewhat, but I beg leave to withdraw my amendment.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Baroness Ludford

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all those who have contributed. These amendments obviously deal with matters of legal aid, and I remind the Committee that LASPO is the Legal Aid, Sentencing and Punishment of Offenders Act, just to put everybody out of their misery—otherwise they will not be able to sleep when they get home. I will be quick, but I will just make one point: with great respect to the noble Lord, Lord Rosser, this is not a matter of generosity. This is not about the Government being generous. I do not want to sound high-falutin’, but this is about the rule of law. Abiding by the rule of law is not a matter of generosity; it is simply non-negotiable, and this provision is in the Bill because it is a proper and necessary thing to do.

Amendment 93 and 94 seek to provide up to seven hours of free legal aid to individuals with a slavery or trafficking notice. They are unnecessary because existing legal aid rules will already ensure that individuals can receive more than seven hours of advice if they receive a slavery or trafficking notice. The key point to bear in mind—and I accept that this is complex—is that a slavery or trafficking notice can be issued only to individuals who have made a protection or human rights claim. That is relevant because it means that they are already within the immigration system and legal aid is already available in order to make that protection or human rights claim. So, in a case where an individual is in receipt of legal aid for their protection or human rights claim and they then receive a slavery or trafficking notice, they are already entitled to advice on that notice as part of their protection or human rights claim. Importantly, there is no limit on the number of hours that can be provided on someone’s protection or human rights claim. Legal advice is available until the matter is resolved, and it may well be for considerably more than the seven hours—or, indeed, 20 hours.

[Baroness Ludford (LD)]

I am really sorry, I know we are looking at the clock, but if I have understood it, and I am sure the Minister is briefed to the hilt, the problem is that he who has, gets more, as it were. If you are already in the asylum system and then you get the notice, you will get even more legal aid—but what if you have not already made a protection claim? What about those people?

[Lord Wolfson of Tredegar (Con)]

The noble Baroness must have had access to my notes, because that was just the point I was going to make. I have written down here that I know the Committee will ask about individuals who are not receiving legal aid for their protection or human rights claim—and sure enough, the Committee did. My answer is that there could be multiple reasons for an individual not receiving legal aid in those circumstances. The individual might not have passed the means or merits test, and those two tests, as the Committee will know, are there to ensure that legal aid is targeted at those most in need who cannot afford advice themselves. That is one possibility, and I will come back to that in a moment. Another possibility—and this does happen—is that the individual has just made an application to the Home Office by themselves and has not sorted out a lawyer. If so, I would strongly encourage them to seek out a legal aid lawyer, who would be able to provide more than the seven hours of advice that could be provided.

Turning to Amendment 94A, the short answer to why we have specified up to seven hours in Clause 24 is that a balance must be struck between giving free legal advice and using taxpayers’ money responsibly. Seven hours is intended to reflect that this is an opportunity for initial legal advice to help individuals understand what the notice is and what it is requiring them to. It is available on a non-means-tested and non-merits-tested basis. That means that anyone with a PRN is guaranteed access to legal aid for up to seven hours, but it does not mean that, after seven hours, there is no further access to legal aid. Some individuals will need further advice; it is not intended that seven hours will resolve every immigration issue. At the end of the seven hours, any individual who has an issue within the scope of the legal aid scheme and who passes the means and merits test will be eligible for ongoing legal advice funded by legal aid until the matter is resolved.

I am conscious that that gets us into the territory of means and merits tests. I answered an Oral Question in this area on Tuesday, when I said that there was a review of the means test under way at the moment, on which I have personally spent a lot of time. I hope very much that we will soon be able to go out for consultation on that. We are conducting a really thorough review of the means test.

Finally, I will address the noble Baroness’s concerns that the exceptional case funding scheme might not be up to standard. Respectfully, I disagree. That scheme is specifically designed to act as a safety net and to provide legal-aid funding to individuals who can demonstrate that, without it, their human rights might be breached. In 2019-20, of the immigration cases that applied for exceptional case funding, 80% were granted legal aid, so that shows that the system works. We are continuing to work with legal aid practitioners and the Legal Aid Agency to improve the scheme if we can.

For the reasons that I have set out, I hope that the noble Baroness, speaking also for the noble Lord, Lord Dubs, will be content to withdraw the amendment.

[Lord Wolfson of Tredegar (Con)]

The noble Baroness’s question is quite broad. She knows that we have had a number of discussions about legal aid, which will continue. I did not do much legal aid in my practice. I do not want to advertise from the Dispatch Box, but my brother-in-law is one of the finest criminal legal aid solicitors in London—I am sure that no one here will ever need his services, but he is absolutely brilliant, none the less.

More seriously, I am very conscious of the need to make sure that people have access to a lawyer with the relevant skill set, because a general right to legal aid is not much use if you cannot find a legal aid lawyer—I absolutely appreciate that. On Tuesday, I explained some of the efforts that we are making in this area. To say any more now might trespass on the Committee’s patience, but I am obviously well aware of this point.

[Baroness Ludford (LD)]

I appreciate the care with which the Minister has responded to these amendments. Although he started by saying that they were unnecessary, he conceded that there is a group of people who do not get legal aid. We might differ in our views on how meritorious they are in any claim for legal aid, but he said that they could find a solicitor and get legal aid that way—but that might not be the easiest thing in the world, for reasons that include what was just discussed. I am afraid that I am not really persuaded.

I will read the Minister’s remarks in Hansard, but I do not think that he denied that there are people who do not get legal aid. The fact that the anti-slavery commissioner was on the case with the JCHR shows that it is not just these Benches over here that think that this is an issue. For the time being, I have to accept that the Minister has given his response and I cannot get any further. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wolfson of Tredegar]

My Lords, I think we are at cross-purposes. I was not saying that the language had not changed; I was saying that the test in Clause 26(5) is the same test as in Clause 23(7). On the question of whether the language has changed, I think the noble Lord is right. I will write to confirm the position—I do not want to get it wrong at the Dispatch Box—but I think there was a change in this clause. The test as set out is entirely proper. Is the only way that justice can be done to take the case out of this tribunal? If that is the only way justice can be done, it ought to be done. If this tribunal therefore, by obvious logic, can deal with the case justly, it should do so.

On the first question, I am not sure how much more I can say. The Secretary of State must consider, in order to certify a case as suitable for an accelerated detained appeal, that any appeal to that decision would be likely to be disposed of expeditiously and that the other conditions are met. In coming to that conclusion, the Secretary of State would obviously have to look at all relevant factors. I am not sure that I can take it much further than that, but let me look again at the noble Lord’s question in Hansard. If I can add anything more, I will do so, so he is in possession of everything I can say before we look at it again—no doubt on Report.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord again for his detailed responses. On the first point, on Amendment 97, I just hope that we do not find ourselves back in litigation. He asserts that the Bill avoids the pitfalls that the Court of Appeal found in 2015 and that the Tribunal Procedure Committee found later. Let us hope so, because obviously, resorts to litigation will also be something that gums up the system, which the Home Office already says is broken. Time will tell if this is going to stay as it is.

On Amendment 99, I believe that the noble Lord, Lord Rosser, is right. If my memory serves, the wording has changed since the Bill was in the other place. Certainly, the JCHR would suggest that wording that says that the tribunal “must”—not just “may”—if the interests of justice and fairness require it, take an appeal out of the accelerated detained system is stronger than the wording that is there at the moment. It says that the tribunal “must” if—and it is a broader test—it is in the interests of fairness and justice. It is a better test, and a fairer and more just test, so I am disappointed that the Minister does not like that amendment—although I guess I am not terribly surprised. On that note, I can only withdraw my amendment.

Independent Review of Administrative Law Update

Debate between Lord Wolfson of Tredegar and Baroness Ludford

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, that is a very interesting proposal from my noble and learned friend. Generally, of course, judicial review does not substitute the decision of the court for the decision of the decision-maker, but perhaps that is a matter which I can reflect on and discuss with my noble and learned friend as I consider the responses to the consultation generally.

[Baroness Ludford (LD) [V]]

My Lords, the Government appointed a distinguished panel to review the operation of judicial review led by a Conservative former Justice Minister. The panel said that

“disappointment with the outcome of a case … is rarely sufficient reason to legislate more generally”.

It was obviously thinking of Miller 2, the prorogation case. The Government seem dissatisfied with that response. and are now consulting on statutory changes, such as for ouster clauses, which the panel advised against. The Faulks review also points out that

“any legislation would be of limited effect unless changes are also … made to the Human Rights Act.”

Given their reaction to the review of judicial review, will the Government similarly ignore the result of the Gross review of the Human Rights Act if they do not get the answers they want?

[Lord Wolfson of Tredegar (Con)]

My Lords, we are not disappointed with the report from the noble Lord, Lord Faulks, and his team. On the contrary, it is a very good piece of work. We are consulting for the reasons I have already expressed. The panel did not say that ouster clauses should never be used; it said that, when used appropriately, they should not be seen as an affront to the rule of law. We want to consult on whether and how they should be used. The independent review of the Human Rights Act is ongoing. We will consider its results in due course. While very significant reform of judicial review might require changes to the Human Rights Act, the changes we are proposing do not.