Public Order Bill

Debate between Lord Wolfson of Tredegar and Lord Coaker

Report stage
Monday 30th January 2023 Lords Chamber

[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.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Coaker

Report stage
Tuesday 8th March 2022 Lords Chamber

[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.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Coaker

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, under Clause 18, where an asylum seeker provides late evidence, this should damage their credibility. Amendment 33 in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green of Deddington, would provide that a person’s credibility should also be damaged where that person fails to produce ID documents when they enter the UK or are intercepted at sea. We do not support the clause or believe it should be part of the Bill, so we do not support the addition to it. A person’s credibility should be based, as it always has been, on the full picture and the worth of the evidence that is submitted.

As we have just heard from the noble Lord, Lord Paddick, where people are fleeing the horrors of war and risk to life, they may not bring the right documentation, or it may have been lost or stolen along the route. As we can see from recent horrors around the world, I am not sure that it would be anybody’s first priority to go back to wherever they were to find any documentation they might have—it would be to get out of danger. However, under the amendment of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green, they would be penalised: it would be a failure by the claimant to provide identifying documents. Such a carte blanche failure to produce identifying documents would mean that such people seeking asylum would automatically be excluded from doing so. I do not think that that would be something that the country or, indeed, this Chamber would want.

There are other issues I wish to raise that are more relevant to the next amendment; however, if this amendment is put to a vote, we will vote against it.

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

My Lords, I am grateful to my noble friend Lady Neville-Rolfe for raising the issue and of course I understand the concerns that lie behind it.

Clause 18 adds two new behaviours to the existing credibility provisions in Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It introduces the principles that providing late evidence without good reason or not acting in good faith should be damaging to the claimant’s credibility. Where, conversely, there are good reasons for providing evidence late, that would not affect the claimant’s credibility.

The concept that certain conduct should be damaging to credibility is not new. Decision-makers must already consider the claimant’s conduct. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged. The focus of Clause 18 is, therefore, the Home Office and then the judicial decision-making process. It is intended to address the issue of late evidence raised in unfounded protection and human rights claims and put beyond doubt that behaviour designed to abuse the system will be taken into account. Clause 18, therefore, is intended to apply to those individuals who have made a protection or human rights claim and have been issued with an evidence notice as per Clause 17. It is not intended to apply, for example, to individuals immediately when intercepted in the territorial waters of the United Kingdom.

Against that background, I suggest that Amendment 33 is unnecessary. The destruction, alteration or disposal of a passport without reasonable explanation, or the failure to produce a passport on request to an immigration officer or to the Secretary of State—again, without reasonable explanation—are behaviours to which Section 8 already applies. The good faith requirement in the Bill is intended to address behaviours such as those mentioned in the amendment, as well as any other behaviours that a deciding authority thinks are not in good faith. Specific instances of a lack of good faith are necessarily caught by the broader provision that refers to good faith: the greater includes the lesser. Therefore, there is no need to single out the behaviours prescribed in this amendment.

As to the detail of the amendment, I say that verification of someone’s identity normally takes place on land. However, should a claimant be in possession of their passport or identity document and fail to provide this when requested by an immigration officer, Section 8 will apply, as I said. Moreover, where evidence is provided late following receipt of an evidence notice in a protection or human rights claim—again, without good reason—this should be taken into account as damaging the claimant’s credibility.

As this amendment refers to specific examples of behaviour designed to abuse the system, and that type of behaviour as a whole is already caught by the provisions of the Bill, I respectfully suggest that the amendment is necessarily unnecessary. For those reasons, I respectfully invite my noble friend Lady Neville-Rolfe to withdraw it.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I do not want to add much to what the noble Baroness, Lady Coussins, and my noble friend Lady Lister said in support of this important amendment. They outlined some of the problems well.

The amendment relates to Clause 25(2), which says:

“Unless there are good reasons why the evidence was provided late”.


It bedevils any Government that as soon as you state, “Unless there are good reasons”, the argument then becomes, “What do you mean by good reasons?” Then you produce a list and people complain that the list does not include everything. So you state that there will be guidance and then the Government do not produce guidance for people to look at to see whether it is worth it or needs to be improved. I appreciate what the noble Baroness and my noble friend said about engagement with the Minister, but these are real issues because people will be excluded from asylum claims on the basis of late provision of the evidence—and we do not know what the good reasons are that will prevent those claimants being excluded as a result of being classified as having given late evidence. It is not satisfactory.

At this stage, on Report, there is this question for the Minister. The list has been produced. The Minister will say, exactly as the noble Baroness, Lady Coussins, said, that by having a list, you will miss people out. That is why the amendment is trying to insert “but not limited to”. This is quite an unsatisfactory situation. Can the Minister not say a little more about what the guidance will say? Can he not give us a little more, in consultation with the Home Office, about whether there could be a draft of some sort, even at this late stage, to give some indication of what the guidance will be on what “good reasons” actually means? I appreciate that this is an ask for the future but the amendment tabled by the noble Baronesses, Lady Coussins and Lady Lister, is extremely important and goes to the heart of the problem with Clause 25 —notwithstanding the fact that many of us do not agree with the clause anyway. In seeking to improve the parts of the legislation that we do not agree with, what “good reasons” means is absolutely fundamental to our understanding.

As I say, I support the amendment; I appreciate that it seems to be a probing amendment. However, these are important issues and the Minister will need to go further to deal with them, I think.

[Lord Wolfson of Tredegar (Con)]

My Lords, I thank the noble Baroness, Lady Coussins, for her engagement with me, as the House will have heard, on the amendment, which she has redrafted since Committee, for the reasons she set out in her speech. I am also grateful to the amendment’s co-sponsor, the noble Baroness, Lady Lister of Burtersett.

We have a proud history of providing international protection to those most in need. This is a responsibility that we take seriously, but we need a system that is efficient as well as effective. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers have regard to the principle that minimal weight is given to evidence that is late following the receipt of either an evidence notice or a priority removal notice without good reason. The House will appreciate that Clause 25 is therefore essential to the architecture of this part of the Bill. However, at the same time, it is important not to tip the balance too far. Decision-makers in the Home Office and the judiciary will maintain their discretion as to whether, having considered the principle and in the absence of good reasons for lateness, it is appropriate in all the circumstances of the particular case to apply minimal weight to late evidence, taking into account the claimant’s particular claim and any specific vulnerabilities.

I have been asked to define “good reasons”. This has not been defined in the Bill for, if I may say so, a good reason. We cannot legislate for every case type where someone may have good reasons for providing late information or evidence in relation to their protection claim. To do so would be impractical and would detract from the important principle that decision-makers are best placed to consider an individual’s particular vulnerabilities on a case-by-case basis. I say this because “good reasons” can include both objective factors, such as practical difficulties in obtaining evidence—for example, where the evidence was not previously available—and subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental and physical health. Decision-makers must be able to respond on a case-by-case basis.

I contrast that with Amendment 34, which would place an obligation on decision-makers not only in the Home Office but in the judiciary to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. I suggest that this would undermine the principle that we want decision-makers and the judiciary to apply their discretion on a case-by-case basis. By setting out a non-exhaustive list—I appreciate that it includes the words “not limited to”—of potential experiences or categories of claimant, it is true that this amendment does not exclude those not listed in the amendment from having good reasons. However, in any non-exhaustive list, there is a risk of focusing attention on the factors in the list, thus putting other applicants with different issues at a relative disadvantage.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Coaker

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

The noble Lord is absolutely right, which is why I was making the point about it being a fundamental extension of the legal aid system, which is uncosted.

[Lord Coaker (Lab)]

My Lords, I thank everyone who has contributed to this incredibly important debate. It lasted just over an hour, so I will be brief to allow us to move on; otherwise, we could have a huge debate again in me responding to the Minister. I am sure many of the same points will, quite rightly, come up in the other groups. I hope noble Lords understand and accept that.

I will reiterate the point made by the noble and learned Baroness, Lady Butler-Sloss, and referred to by the noble Lord, Lord Kerr. It is interesting to note that, when a Government are in trouble, they defend themselves against everybody. You know when a Government are in difficulty because they resort to exactly the sort of defence—quite rightly; I have done it myself—that the Minister resorted to: “If only you understood the statistics and appreciated the difficulties”. That officialdom then rains on everything. When everybody else thinks you are wrong, you usually are. I gently suggest to the Government that they have got this wrong.

I am pleased the Minister was honest about this and I thank him for his response. It is clear the Government think the system is being abused and that people are claiming to be victims of modern slavery, either straightaway or late in the day. The Government are determined to shut down this loophole in the system. That is what is going on and it is why the danger that all of us raised about including modern slavery in an immigration Bill or the Nationality and Borders Bill—whatever you want to call it—sets a context that is difficult for modern slavery, to put it mildly.

All that I would say to the Minister is that even if the Government are right in saying that there is a problem here, by trying to deal with the issue as an immigration offence, which is essentially what they are doing, they are driving a coach and horses through the principles of the Modern Slavery Act. That is why people are so upset about it, so disappointed about it, so angry about it and so frustrated about it. They accept that the Government have to deal with immigration and that there are difficulties but this country has been proud of the way in which we deal with victims of modern slavery. Treating them, as they will be, as potential immigration offenders will change the dynamic. There are victims who we do not know and have no idea who they are. Children, whether they are 17 and a half or 13 are going to be impacted. As a consequence of what the Government are doing, innocent victims are going to be penalised in the name of tackling the problem of immigration. That is why people are so disappointed.

In conclusion, I say to the Minister that it must come to something when large numbers of the governing party as well as all the other parties that make up this House, including organisations of all faiths, are arraigned against this measure, along with all the voluntary sector, including the Government’s own voluntary organisation, the Salvation Army. I should have thought that that would have given the Government pause for thinking that maybe they have not got this quite right. Let us hope that between now and Report that they do so, otherwise I can foresee real problems on Report with respect to the clause and the other clauses in Part 5. I beg leave to withdraw the amendment.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Coaker

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

[Lord Wolfson of Tredegar (Con)]

It is because there is absolutely nothing wrong with Parliament saying to a tribunal, “We want you to have regard to this principle, but of course the final decision is yours”. We do that in other areas of the law as well. As the noble Baroness, Lady Ludford, kindly said, I gave evidence yesterday to her committee in what I hope was an interesting session. One thing we talked about was Section 12 of the Human Rights Act. The layout there was not a million miles away from this. It too gives a very clear direction to the court, but ultimately it is the court’s decision. I find it slightly surprising that, on the one hand, the noble Baroness is saying that this is tawdry and dreadful but, on the other, is saying, “Actually, you don’t need it all because the same result is going to eventuate”. Both points cannot be right at the same time.

As we all know, the asylum and the legal systems in this regard are overwhelmed. We see repeated unmeritorious claims at the very last minute designed to delay removal. This clause is a proper part of an overall system to make sure that we give protection to those who need it—I always put that first; that is the most important thing—and at the same time to identify unmeritorious claims.

Finally, Amendment 137 in the name of the noble Lord, Lord Dubs, and spoken to by the noble Baroness, Lady Ludford, seeks to implement a recommendation made by the JCHR in its ninth report. Of course, we welcome the JCHR’s positive comments on Clause 45. Migrants who are subject to removal must be given sufficient opportunity to access justice. The clause improves and enhances the status quo. It gives a statutory guarantee that migrants will receive a minimum notice period of five working days. As a result, some migrants will get more time compared to the current policy. It introduces a separate statutory requirement for a notice of departure details to be provided to the migrant before removal.

On a practical level, Clause 45 will be supplemented by policy guidance that accords further respect to the common-law right to access to justice. I say respectfully that it is not clear to me what deficiency in Clause 45 Amendment 137 tries to address. I would genuinely welcome engagement from the noble Baroness and the noble Lord, Lord Dubs, to identify what offending aspects of Clause 45 there may be and how Amendment 137 would solve them.

Therefore, having taken probably too much of the Committee’s time already, I invite the various noble Lords to consider not pressing their amendments.

[Lord Coaker (Lab)]

I thank all noble Lords who have spoken in this very important debate. I also thank the Minister. Yes, it was a long reply, but it was an important one and it did not take up too much time. Sometimes long replies are needed, and the Minister was right to take the time that he took to respond. There are a large number of points on which I could reply to the Minister, but it is clear that we will have to come back to some of them on Report.

If the Minister does not mind me chiding him slightly, I will say that that was a bit of a “no worries, no problem” defence: “Everything is fine. It will all be sorted in guidance, although we will not see it until some future time. Do not worry about the children problem that the noble Baroness, Lady Lister, raised, because we have all taken into account the sensitivity of children and how old they are. Do not worry about LGBTQI because they will all be very reasonable. Do not worry about the good reasons either—it will all be sorted. Good reasons mean good reasons. Nobody will do anything about it if the reasons are good.”

One example where the Minister was in trouble at the end essentially concerned Clause 25(2). When is a principle not a principle? Is it a principle when it is written down? I love the phrase “have regard to”; it is always put in. The Minister said that we do not have to take X or Y into account. In a sense, he agreed with the JCHR that a better word would be “may” instead of “must”. This is quite a significant change—something may be taken into account, or it may not be. At the moment, it says “must”. This is the problem with which he was trying to wrestle—first, whether there is a principle at all, and secondly, whether “may” or “must” should be used.

The Government are seeking to deal with the problem that the asylum system is in chaos. Half the decisions are overturned on appeal. Panic has broken out. The Government say, “We cannot have this. The public are going mad. Everybody is dissatisfied. We will get more and more of this. Everyone is making late appeals. They are not abiding by the rules. We have to do something.” A whole series of new measures is being taken to overcome a bureaucratic problem. In the end, it needs good—probably trained—decision-making, speedily done, to get a system that works. The Government will not address the very real problem in the Bill, particularly in respect of late priority notices, except on a piece of paper. In a year or two or three, there will be a Nationality and Borders Bill mark 2. If they are not careful, whoever is in government—I hope it will be a different Government—will be panicking in the face of it not working. They will bring in other measures.

Much of what has quite rightly been raised by noble Lords across the Chamber will have to be revisited on Report. I thank the Minister again for his courtesy and for the time and trouble he took to try to respond. Finally, the sooner we have a look at the guidance, the better. It is very frustrating when the Government say that they will publish the guidance and it is published after the Bill is passed. We deserve to see the guidance as soon as possible. I would be very grateful if the Minister could pass this on. I seek leave to withdraw the amendment.