Immigration Bill

Lord Woolf Excerpts

Wednesday 5th March 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I again thank my noble friend Lady Hamwee for moving her amendment and raising the issues which arise under Clause 12.

At present, all appeals where there is a human rights claim suspend deportation unless the claim can be certified as clearly unfounded. The powers introduced by Clause 12(3) mean that those facing deportation, including foreign criminals, may be deported, and their appeal heard while they are out of the country, if the Secretary of State certifies that that would not breach the UK’s obligations under the European Convention on Human Rights—a point well made by my noble friend Lord Bourne of Aberystwyth. This is intended to build on the Crime and Courts Act 2013, where the Government made similar provisions for out-of-country appeals in national security deportations. The serious irreversible harm test is one used by the European Court of Human Rights when it decides whether an individual deportation must be suspended, and also in its rulings on what types of claim must be granted an in-country appeal. Amendment 31 would limit the scope of the power to those who are being deported who do not have a child in the United Kingdom, while Amendment 31A would remove the power entirely from what would become Section 94B of the Nationality, Immigration and Asylum Act 2002.

I reassure the Committee that the clause will impact only on a very small cohort of cases—those whose actions and behaviour is non-conducive to the public good—and that in limiting the power to deportation cases, the Government are acting in a proportionate way, and not going as far as European Court of Human Rights cases allow. I assure the Committee that by framing the provision in this way, an arguable asylum claim would never qualify for certification under the power. The Secretary of State cannot use the new power where there is an arguable risk of a breach of Article 2 or Article 3 of the European convention.

Equally, the drafting of the Bill means that this power will not be available for those whom the Government are seeking administratively to remove for the purposes of immigration control—such as illegal entry or overstaying a visa, although ECHR case law would in fact have allowed such an approach.

A deliberate decision has been taken to make the power available only for a small cohort of cases where the individual’s actions—the action of the person for whom certification for deportation is relevant—the vast majority of whom will be convicted criminals. I will come on to the point raised by the noble Baroness about others. This applies if the individual’s actions mean that the Secretary of State considers that their presence in the United Kingdom is not conducive to the public good. Perhaps I may illustrate the size of the issue for the Committee. According to Ministry of Justice figures, in 2012-13 the Asylum and Immigration Tribunal received 1,800 appeals against deportation, which included a number of miscellaneous appeals. This change would have impacted on less than 2% of the appeals that the tribunal received that year.

The Government would not seek to remove family members of those whom we are seeking to deport if they have immigration status in the UK in their own right; for example, if they are an EEA national exercising treaty rights or individuals with indefinite leave to remain, or have valid leave as a student. Even in the rare cases where the Government seek to deport family members along with the principal, for example because their status in the UK is based solely on their relationship with the deportee, this clause does not allow the appeals of dependants to be certified: they will be suspensive. The power is also a permissive one in that the Secretary of State may certify appeals but is not required to. This will allow cases to be considered on their individual facts and ensure that the Government complies with their duty to consider the best interests of the child as a primary consideration in immigration decisions.

The noble Baroness asked what would happen if a person wins their appeal. If an individual wins an appeal from abroad, the UK Government will facilitate their re-entry into the United Kingdom.

In summary, the power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The clause is limited and tightly defined to ensure that only those who have caused or are trying to cause harm are deported from the country quickly.

[Lord Woolf (CB)]

Would the Minister be good enough to indicate what “facilitate” means? Does it mean that the Government are going to pay their costs of returning, as used to be the practice?

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. Clearly, there will be an opportunity to challenge the decision to certify taken before the deportation took place. We do not believe that there would be a liability to pay compensation if an appeal were successful. I think that I have a fuller answer somewhere on that particular point; I know that I have read it. If I do not get it in my hand before I sit down, I will certainly write to the noble and learned Lord. And here it is. If an individual wins at appeal, they will be entitled to return to the United Kingdom and the United Kingdom Government may pay for their airfare, which will be considerably less than the cost of detaining them while waiting for their appeal. I am grateful to the noble and learned Lord for his forbearance on that.

I was trying to get to the point at which the Baroness, Lady Smith, asked about the original Bill being amended in the House of Commons. The provision as it originally stood stated “criminals”, but that was extended because the Government realised on reflection that this definition would leave out a cohort of harmful individuals who should not have a suspensive right of appeal. That could include individuals who are being deported from the United Kingdom on the grounds that their presence is not conducive to the public good, a broader judgment than automatic deportation on the grounds of a single offence. For example, they could be gang members where witness intimidation and a culture of silence means that there has not been a successful prosecution but there is compelling evidence about their conduct that can be used in an immigration decision. The Home Secretary would consider the intelligence against a person and on the basis of that intelligence deport him as his presence in the UK would not be conducive to the public good.

A case is certified for the Special Immigration Appeals Commission on the basis that it has been taken considering secret intelligence, so it does go wider. My right honourable friend Mark Harper gave examples in the other place of where there may be good information and intelligence but, for reasons possibly to do with witness intimidation, it has not been possible to bring a prosecution. Obviously, this can be tested in any appeal which takes place.

I turn to Amendment 31, which was moved by my noble friend. The amendment would mean that this group of cases, of people whose presence in the UK is deemed harmful, would be able to use a child—who may have been in the UK for only a matter of days or weeks, because there is no definition of what a qualifying child would be—to avoid certification of their appeal and their early departure from the UK. They would be able to use the presence of that child even if they were not in fact responsible for caring for the child—who might live somewhere else or with other family members.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Lord Woolf Excerpts

Monday 13th January 2014 Lords Chamber

[Baroness Williams of Crosby (LD)]

My Lords, I strongly support my noble friend’s amendment and that put forward so effectively by the noble and learned Lord on the Cross Benches. Having been a Minister, I want to say a few words about what in my view is the absolutely vital importance of including special advisers in this Bill. I would add to that the first three ranks of the Civil Service, by which I mean under-secretary, deputy secretary and Permanent Secretary.

I find it very puzzling that the specific rank of civil servant mentioned in the Bill is that of Permanent Secretary. I can think of almost nobody less likely to be open to exploitation by lobbyists. To be a Permanent Secretary, you have to be somebody of outstanding integrity, whose honour cannot be doubted, who will be respected in his or her own department and who sets the quality and standards of that department. You are, frankly, the last woman or man to be likely to fall for the more dodgy approaches of some slightly dodgy lobbyists. In fact, it is close to inconceivable that this particular person is likely to be open to temptations of a kind that all of us would eschew.

However, I am asking the Government to include the first three levels because, as has been very rightly said, the much more tempting position is that of people near but not at the top. For example, I was for some years on the Government’s Advisory Committee on Business Appointments. We looked consistently at what the gap should be between a senior civil servant leaving his or her department and being free to take up other employment afterwards. Members of this House will know that certain departments have very close links with the private sector and that, therefore, their officials carry with them a level of expertise that is quite exceptional. They are indeed very attractive recruits to private business because obviously they have a great deal of experience and knowledge.

Generally speaking, in the Advisory Committee on Business Appointments, consideration is given to how wide the gap should be between leaving one’s employment as a civil servant and joining a private industry with which one may previously have had some kind of relationship. It is extremely tempting, obviously, for somebody to join a private sector business when they have a great deal of knowledge that would be useful to that business, but the longer the gap the less useful that knowledge may be. It is therefore strange, to say the least, that the level of seniority in the Civil Service that makes an individual so attractive to major industries that have close relations with a certain department should not be covered by this Bill.

I have suggested that we should limit that practice as much as possible. I quite agree with my noble and learned friend Lord Wallace of Tankerness, but it is no good having what he called a laundry list or a telephone list of names. Deputy and under-secretaries are very limited in number and particularly attractive to those who want their expertise. I do not doubt that both sides behave with full honour but I also think that lobbyists will be very attracted to people in that situation, and therefore it would be strange if the Bill did not cover that particular group of civil servants.

When I first became a Minister the number of special advisers was extremely closely controlled. According to Prime Minister Wilson, the absolute maximum number of special advisers any Minister, however senior, could have was two. They had to be shown to be knowledgeable about the kinds of organisations with which that Minister would interact; for example, in my own case as Minister of State for Education and Science, it was very clear that the special advisers I needed had to be able to show expert knowledge and evidence of science, universities or the education of children in schools. The two I had were both eminently well suited in that way. But the general attitude towards special advisers was very limited. They were experts, they were there to advise, but they were not there to substitute.

That has rather changed over the years. There are now many more special advisers than there were. There have been one or two worrying cases where a special adviser has taken upon himself or herself responsibility for something that clearly should belong to the Minister. My noble friend Lord Tyler gave an example. Some of your Lordships may remember the famous occasion when a special adviser told her Minister that it was a good time to issue bad news and crises were ideal because they meant that the bad news was hidden by the interest of the media in other issues. I do not want to push that very far, but there are certainly a few cases—not many—where special advisers have behaved as if they were autonomous, and beyond what seems to be either the wishes or the desires of the Minister concerned. Some people may remember that the previous Prime Minister, Mr Gordon Brown, had difficulties with at least one of his special advisers, which did not do him or his reputation any great good, despite the fact that he is undoubtedly a man of integrity and honour himself.

Quite straightforwardly, that means there is a very strong case indeed for recognising that special advisers are, as the noble and learned Lord, Lord Hardie, and my noble friend said, something of a highway to a Minister. They are the quickest route to his personal information; they are probably closer to him than anyone else in his department, with the possible exception of his PPS. Often, they are also people who have their own agendas, and those agendas may not invariably be the same as that of the department. I therefore feel that it is important that special advisers should be held accountable. Indeed I would go further and say that it is crucial that they should be held accountable, and that this Bill takes congnisance of the relationship between a Minister and a special adviser.

Therefore I hope that the House gives full consideration to the proposals in these amendments and will recognise that, without some movement towards including special advisers, the effectiveness of this Bill will be very much limited. I have already argued for the top three ranks of the Civil Service. I hope that the amendment will be seriously considered in this House, and that the Government will reconsider the narrowness of the interpretation of which people are open to lobbying. As the Bill stands, it is steadily getting better. I pay full credit to my noble and learned friend Lord Wallace of Tankerness and his noble friend Lord Wallace of Saltaire for the improvements that have been made to this Bill, but we should include special advisers in evidence that we are serious and committed to the idea of limiting unfortunate and ill-motivated lobbying to those who might be effecting it.

[Lord Woolf (CB)]

Could I ask for the noble Baroness’s assistance from her great experience on whether she sees any difference between special advisers, to whom Lord Tyler refers, and political advisers, to whom the noble and learned Lord, Lord Hardie, refers?

[Baroness Williams of Crosby]

My impression is that there is not any real difference between the two. It is possible that some Ministers prefer to use the term “political adviser” to indicate to the public the scope of a particular special adviser’s responsibilities, but I do not believe there is any more to it. I hardly dare say that to a former leading justice in this country, but I hope he will agree with me that there is no real difference between them in terms of their responsibility.

Justice and Security Bill [HL]

Lord Woolf Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Thomas of Gresford]

I have certainly been up the front stairs to see many a judge in chambers. The noble and learned Baroness must know that we see the judge in private on many occasions, particularly when public interest immunity claims are being used.

The second principle of open justice is that the acts of public servants must be open to scrutiny and accountability by the public and by Parliament. It is for the judge to determine whether, as a last resort, open justice must give way to national security in the circumstances of the particular case. Everybody who has spoken here this evening has said that judges are perfectly capable of making that judgment, of carrying out that balancing exercise. However, that does not mean that secrets will be disclosed. We are talking about civil cases, about means whereby secret information will be withheld, and many mechanisms for achieving that have been referred to.

I draw your Lordships’ attention to a civil case last December which challenged the Defence Secretary’s practice of handing over detainees who had been captured in Afghanistan to the Afghan security forces. There was evidence to suggest that torture would be inflicted upon those people by those forces. The case came to court and the Defence Secretary claimed public interest immunity for a number of documents. Lord Justice Moses held that there was no objection in principle to the disclosure of material that was the subject of that claim into a lawyer-only confidentiality ring. That procedure is well known in the commercial courts of this country, and I believe that it is used in the United States of America. Is it not interesting that, while we are changing our law, we have not heard any suggestion from the United States, which is faced by the problems with which we are grappling, that it proposes to change its law or constitution in any way at all?

As I have said, these principles are core principles of liberalism and democracy, and I hope that your Lordships will support these amendments in the light of these principles.

[Lord Woolf]

My Lords, I propose to say only very little because to some extent I anticipated what I might say, both in the previous debates on this matter and in the letter that has been referred to. However, when you hear Members of this House, with the experience that they undoubtedly possess, expressing concerns on this subject in relation to this Bill, I say that we have to give those concerns the utmost care and consideration, because their importance is very great indeed. We must be very careful that we do not fall into the trap of changing our traditions when that change will cause more harm than good.

Despite the arguments that have been advanced to the contrary, I remain firmly convinced that the Bill that we are now considering is radically better than the one that we were considering before, and the Government must be entitled to credit for that. As I understand it, what we really are considering, despite the oratory that we have heard, is very much a matter of degree. The only question to consider now is whether two further precautions should be inserted into the Bill in respect of what the Government have already done, which is to be welcomed on all sides.

Of course I accept the importance of open justice. You do not need to have that set out in a Bill for judges or ex-judges to say it. We have heard clear evidence of that in a recent decision of our Supreme Court, where the president of the Supreme Court was dealing with a procedure that is akin to the procedure now being proposed. The president of the Supreme Court, the noble and learned Lord, Lord Neuberger, made the clarion call—and I am delighted that he made the statement—that all should recognise that we are dealing with a situation that involves an intrusion into the principle of open justice. If there was any doubt about the ability of judges to protect that principle, I suggest that the noble and learned Lord, Lord Neuberger, made it clear that judges will protect it. After all, a judge makes a judgment, but his judgment is then subject to appeal. I urge the House to conclude that what we want is a situation where the judiciary, which has the fundamental responsibility of doing justice, has a discretion that is wide enough to do justice in the particular case that comes before it. I suggest that this Bill, without the proposed amendments, has to be judged on whether it enables the judge to do that.

The noble Baroness, Lady Berridge, suggested that this Bill might enable judges to do things that would reflect adversely on them. I accept that that is the inevitable consequence of judges exercising their responsibility to protect national security. If giving a judgment that is right and in the interests of effective and fair justice will reflect adversely on a judge, he or she must do their duty, give that judgment and not be concerned by the reputational consequence for them of giving that judgment. It is my belief that that is just what our judges do. They would put that out of their minds. Those are political considerations, which they should not be concerned with.

What is being done here is something that the Government say will contribute to justice, not the other way round. It is being done because, as must be recognised, it is the only real alternative that the judges do not already have. With great respect to the noble and learned Lord, Lord Goldsmith, I found his submissions difficult to follow, because redaction does not need this Bill; it is something that judges use regularly. The judge’s ability to take sensible precautions to protect national security is used with a degree of frequency, but this Bill does not affect those cases. It affects only those cases when the judge is satisfied that better justice will be done because of the Bill than would be done without the Bill. The amendments are to be criticised for the reasons identified by the Minister in opening the debate. It is right that you cannot have the judge using what is proposed here as a last resort, because that would undermine the Bill’s purpose.

Does the Bill give the judge the discretion that he or she needs? I remind noble Lords of the terms of Clause 6(2), which says:

“The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those are very wide terms, which give the judge what he needs. Clause 6(3) provides:

“The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those provisions put the judge in the driving seat, which is exactly where the judge should be as a result of this Bill.

Although we have to examine the arguments to the contrary with great care and appreciate just how important are the principles at stake, we should come to the conclusion that this is a Bill of which we can now approve.

[Baroness Hamwee]

I ask my noble and learned friend two short questions. The first is a very simple one, possibly even simplistic. He referred to the change in terminology from “must” to “may” as being very profound. Could he confirm to the House that the Commons amendment providing that the court,

“may make such a declaration”,

if it considers that two conditions are met, is equivalent in non-legislative speak to saying that the court may not make a declaration unless the conditions are met? In other words, it may make a declaration only if those conditions are met.

My second question concerns a matter that has been referred to once very quickly—that is, gisting, or the disclosure to an excluded party of sufficient material to enable him to give effective instructions to the special advocate representing his interests in closed hearings. Clause 10, which is to be amended by Amendment 17, is about the rules of court, and I would like to ask my noble and learned friend about those. There is nothing returned from the Commons on which we can hang an amendment specifically about gisting, so I hope the Minister can reassure us from the Dispatch Box that the rules will provide what I hope they will in this connection. Under Clause 10(2)(g), rules may enable the court to give a party to the proceedings a summary of evidence taken in that party’s absence. Responding to the first report from the Joint Committee on Human Rights, the Government say:

“Wherever it is possible and practically feasible to provide gists and summaries of national security sensitive material without causing damage, they will be supplied”.

They add that the question of gisting should be decided on a case-by-case basis. I do not want to take up the time of the House by arguing for the importance of the special advocate being able to take instructions from his client—that, I am sure, will be self-evident to everyone—but I ask the Minister to give an assurance that the rules will require gisting and I ask this particularly as Clause 10, to which I have referred, said the rules “may” make the provision, while Clause 7 provides that rules of court “must” secure certain things. I hope I do not read too much into the distinction between those two terms.

Justice and Security Bill [HL]

Lord Woolf Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, I can be very brief. Following the publication of the Green Paper, the Government indicated a concession that the Green Paper’s proposals were drawn far too widely and that the legislation that they would bring forward for consideration would be far tighter. In particular, they indicated that a judge rather than a Minister would have the final say and that closed material procedures would be available only in the most exceptional circumstances.

In fact, the Bill did not provide for either of those undertakings. It is only these amendments that are capable of securing them. The amendments finally give the judge the appropriate discretion to balance national security with the interests of justice, which is an essential tool for the judge if he is to control the fairness of the procedures in his own court, which is a critical aspect of the rule of law.

Secondly, the amendments secure a situation in which a closed material procedure would genuinely be a measure of last resort because they will require every other option to be considered first. My conclusion is that the amendments provide what the Government promised but did not secure in the Bill. For that reason, I shall support them.

[Lord Woolf]

My Lords, may I just add a few words to the very able speeches that have already been made? I preface them by saying that I am a hedger, not a ditcher. I hope that I will be forgiven for putting my words in the context of my own experience in this case because it is particularly relevant. For five years I was what was known as a Treasury devil or a Treasury junior, whose task, without having any political allegiance, was to be its representative in the courts in cases which would otherwise cause difficulty when being heard. One went to the court with the advantage that you were instructed by the Treasury solicitor. You were the general counsel of the Government in civil cases but when you were dealing with cases of the kind we are here considering you appeared in a completely neutral capacity.

As a result of that experience, I found that within the procedure then available—in which evidence which damaged national security would have to be excluded—there were all kinds of things that the courts and advocates could do to avoid the decision being made that the evidence could not be looked at in the court because of public interest immunity. As has been pointed out, that does not help the interests of justice because the court is blindfolded for some evidence which would otherwise be relevant. However, by using the tools available—which included members of the Bar on different sides accepting that they could rely absolutely on the integrity of the Treasury devil counsel—you could, in the great majority of cases, get evidence before the court in a way which achieved justice.

However, there was a very small minority of cases where that could not be done. One then had the unfortunate situation where there was relevant evidence that could influence the outcome which not even the judge could take into account, either for a claimant or a defendant. I suspect that no one in this House would like that situation to arise—certainly the judge did not like it—and that is why the kinds of efforts that I have indicated were taken regularly to avoid it happening. I emphasise also that, even where that happened, only a small portion of the case would not be investigated; other parts of the case could be investigated.

In generality, the proposals contained in the Bill have a great advantage over the existing process of public interest immunity: they allow the judge to have the material in a way which ensures that the interests of national security are protected. The European Convention on Human Rights does not intend or require a court system of any country to act in a way which is inconsistent with the interests of national security. It requires that the court, if it is going to take action which is not normally appropriate, should take all the steps which are open to it to minimise the effects of so doing. That is why, so far as proceedings in this country are concerned, the European Court of Justice in Strasbourg proposed the use of the special advocate. That was one step that could be taken to further the interests of justice which hitherto we had not taken. The noble Lord, Lord Lester, in his powerful speech, explained the history of how that form of action had its source in Canada, was praised by the European court, and when appropriate was adopted in this country. The procedure did not cure the disadvantages of evidence not being given in the ordinary way, but it did provide a way of getting closer to doing justice than was possible without it.