European Union (Withdrawal Agreement) Bill
Viscount Hailsham ExcerptsTuesday 14th January 2020
(4 years, 5 months ago)
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Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendment 4, to which I have attached my name, as well as Amendment 8 and others in this group. As currently drafted, the Bill does not match the Government’s previous assurances that EU citizens’ rights will be protected. It is impossible to deny that massive errors occur in the UK immigration system. People are wrongly deported, sometimes in tragic circumstances leading even to death. While many of these tragedies occur whether or not there has been an appeals process, it is certain that many more injustices will happen if an appeals process is not available. For that reason, the Bill must set out a clear right to an appeals process. It is not good enough to leave it to Ministers to decide on an appeals process in the future, because the Bill does not give a date by which an appeals process should be brought into force. This means that Ministers might never create an appeals system at all.
Also, no principles are set out, or basic rights which must be protected, or rules which must be obeyed. I do not want a situation where government inaction, for whatever reason, leads to injustice or, worse, citizens’ rights becoming another bargaining chip in the next stage of Brexit negotiations. I say this as someone who voted for Brexit—but I did not vote to be nasty or to make people feel vulnerable and at risk of being deported, and I did not vote to ruin people’s lives.
Surely the Minister understands that the Government are creating a quite complex new immigration status for EU nationals and that it is almost certain that administrative errors will happen, so a clear appeals process must be set out in this important legislation. I therefore make a plea to the Minister to take the amendment away and discuss it with his officials. We need something like this in the Bill so that errors can be put right and so that our EU friends and neighbours know that justice will be done.
Viscount Hailsham (Con)
My Lords, I rise briefly to speak to Amendment 10 in this group, to which I have put my name. From my point of view, the amendment is more by way of a probing amendment, because I appreciate that the regulation-making powers that are provided for in Clause 11 are subject to the affirmative resolution procedure, as set out in Schedule 4. However, my concern is that the regulations could strike down the ability to make an effective appeal review under judicial review, and I would like to know why this is.
Judicial review is a very important remedy so far as the citizen is concerned, because they can challenge the power of a public authority on the grounds that it is, for example, unlawful, unreasonable or ultra vires, or on a number of other grounds. I appreciate that the courts have sometimes gone a bit far in their interpretation of their powers, in that they have on occasion usurped the executive functions of Ministers—but that is by the way. What I would like to know in this case is why we are extending the power in the regulations to tackle judicial review, and in particular what kinds of changes the Minister has in mind when contemplating this power in the statute.
Baroness Hamwee
My Lords, I have put my name to Amendment 10. As the noble Viscount said, judicial review—the right to apply to the courts to review the decision of a public body—is hugely important. I do not share the view that the courts have acted inappropriately and entered the political arena when they should not have, but, as he says, that is not the point.
Viscount Hailsham
I was not trying to suggest that, for example, striking down the Prime Minister was in any way wrongful. I would have done so if I had been in the Supreme Court. What I am suggesting is that quite often courts do intervene on executive matters. I certainly do not include in that the decisions made by the Supreme Court at the back end of last year, which I profoundly supported.
Baroness Hamwee
I was not seeking to have a go at the noble Viscount. If judicial review has grown inappropriately, that is a separate matter. It is dangerous if the Executive are seeking through this provision to protect themselves from proper oversight by the courts.
In the Commons, a Member said on rights of redress for EU citizens that
“appeal rights and judicial review are enshrined”.—[Official Report, Commons, 7/1/20; col. 330.]
The Minister endorsed that, at col. 336. But Clause 11(3) seems to “deshrine”—if that is a word—judicial review. I too am concerned that at the least we understand what we are doing, but, if it is as I understand it, that we do not do it.
Baroness Williams of Trafford
My Lords, I thank noble Lords who have spoken to these amendments. We cannot support them, and I will outline why. The Government will provide for a right of appeal against citizens’ rights immigration decisions. While I commend noble Lords for their commitment to citizens’ rights, these amendments create unnecessary changes to the wording of Clause 11 and, at worst, undermine our ability to provide for a right of appeal in all circumstances and ensure consistency for judicial review, and even create perverse incentives to appeal decisions to gain the benefits of indefinite leave to remain.
Amendments 4 and 9 are unnecessary. EU citizens who are appealing a decision on residence must be able to appeal if refused leave, or given what they believe is an incorrect status under the EU settlement scheme, under our international agreements. It is also damaging, as a power is required to implement the numerous situations requiring appeals.
Amendment 5 is at best unnecessary and, at worst, could prevent the provision for necessary appeals. This Government will provide for a right of appeal against citizens’ rights immigration decisions. This is an essential part of our commitment to protecting the rights of EU citizens, EEA EFTA and Swiss nationals under the withdrawal agreement, the EEA EFTA Separation Agreement and the Swiss citizens’ rights agreement.
On Amendment 6, the current wording of Clause 11(1) allows the Government to make sufficient regulations in relation to appeals against citizens’ rights immigration decisions. It fulfils our commitment in the agreements and provides certainty to EU citizens that they shall have a right to appeals. Moreover, the Delegated Powers and Regulatory Reform Committee has recently commended the powers in the Bill as,
“naturally constrained by the scope of the particular matter contained in the Agreements”.
As such, Amendment 6 is unnecessary.
As for Amendment 7, it is in the public interest to make reviews of exclusion directions made in respect of those protected by our implementation of the withdrawal agreements consistent with how similar reviews are treated now. This power enables us to do this, but Amendment 7 would remove that ability.
Amendment 8 would make it harder for EU citizens to challenge an exclusion direction, would prevent the Government being able to prevent removal unless the appeal is certified and would create a perverse incentive for individuals to launch appeals to gain access to the benefits of indefinite leave to remain.
Amendment 10 seeks to limit the power in Clause 11 in relation to judicial review. It is in the public interest to make reviews of exclusion directions made in respect of those protected by our implementation of the agreements consistent with how similar reviews are treated. This power enables us to do this, but the amendment would remove that ability.
Baroness Williams of Trafford
I will, but first I reiterate that appeals processes will be set out in the regulations to be made under the power in Clause 11. The regulations will be made in the last week of January, to answer the question asked by the noble Baroness, Lady Jones of Moulsecoomb. I may now be answering my noble friend’s question, because he asked whether we have a power to make changes to reviews, including judicial reviews. This limb of the power will be used to ensure that the legislation that interacts with new citizens’ appeal rights continues to function appropriately. It ensures that we can amend Section 2C of the Special Immigration Appeals Commission Act 1997 to provide that the Special Immigration Appeals Commission can hear reviews in respect of those protected by the agreements in the same way as they hear reviews in other cases, such as the most sensitive immigration cases. We will not be restricting the availability or scope of judicial review.
Viscount Hailsham
I would like just a little more clarity, although my noble friend has given quite a lot. Do I understand that what the Government are thinking of doing is procedural only, and they are not seeking in any way to curtail the substantive rights that presently arise under judicial review?
Viscount Hailsham
My Lords, I very gratefully support the points made by the noble Baroness, Lady Hayter. I entirely agree with her; I think it is necessary to have a sunset clause, and if it is not necessary it behoves the Minister to tell us why. One of the central problems arising all the time is whether secondary legislation, whether affirmative or negative—I acknowledge that in this case it is very largely affirmative; I am aware of that—is unamendable. Statutory instruments are often published very close to the time when they are to be considered by both Houses, with the consequence that you do not get proper consideration by members of the public or people who have an interest in what is proposed. I hope that the Government will give serious consideration to a sunset clause. If we are told that two years is too short a time, let us have an argument about that. I am sure we could come to a date that would be acceptable to all parties. Could we please have a reason why a sunset clause is unacceptable in principle to the Government?
Baroness Hamwee
My Lords, my name is also put to the amendment. In the Commons, the Minister said that the clause enables the Government to
“maintain our statute book in accordance with the social security co-ordination provisions”.—[Official Report, Commons, 7/1/20; col. 323.]
That puzzled me, because they do not need this to do that. Both noble Lords who have spoken pointed out the potential problems. The noble Viscount, Lord Hailsham, reminded me that, so often when the House is asked to look at secondary legislation—or is given the opportunity to do so, having had to take positive steps to raise the issue—people who are affected and organisations that know about it make really valid and useful points. It does no good to the reputation of the House to be able to do no more than say, “Well, I’ll raise that in debate”, because we know that we cannot make any changes. I support what is proposed here; it is entirely sensible and in no way wrecking.
Lord Bethell
No, that is a neat way of putting things, but it is not quite the point I was trying to make, which is that they are very closely defined in terms of breadth and that the detail of the regulations is so minute that it would waste the time of these Houses to go through them line by line. It is important for solidity and confidence in the system that they are expedited quickly and resolved without delay. Without wishing to give the game away regarding what I am about to say, the bottom line is that we simply do not have the legislative capacity in these Houses to go through all the complexity of the details as they arise at an EU level.
Viscount Hailsham
That is a serious statement to make. My noble friend is saying that Parliament cannot do its job. Does that not mean that these matters need to be considered by the commission on the constitution—and preferably a royal commission?
Lord Bethell
No; my noble friend puts it well, but I am alluding to the fact that there is a hierarchy of priority, and there are matters of significant policy and implementation that are of a sufficiently high level to warrant the attention of the House. However, this clause refers to matters of an operational nature, which are there to implement the agreed clauses of the withdrawal agreement.
There is no question of this clause being used to bring in new policy, new arrangements or the kinds of policy changes that, frankly, would warrant discussion in the Houses. That is the reassurance that I am trying to communicate to the House, that any changes in the actual policy and arrangements and the benefits of those in the 5 million, whom the noble Baroness, Lady Hayter, accurately referred to, are absolutely not part of either the intention or the way in which these clauses are written.
Lord Bethell
My Lords, the point is well made, and I understand the desire of the Houses to keep scrutiny on measures, which is entirely fair. However, in this case, confidence, solidity and a sense of commitment can be promised and delivered by the Government only if they do not have the fear that the pipeline of legislation going through the House might delay important technical changes and hold up the delivery of these benefits. It would put a huge pressure on these Houses of a kind that is not realistic or reasonable to have the entire legislative timetable of our proceedings held hostage to the microchanges and small needs of EU social security regulations and improvements, which may in decades to come affect only hundreds of thousands of people and require small administrative changes in regulations.
Lord Bethell
My noble friend puts it well; I am not trying to brush off hundreds of thousands. I am trying to communicate a sense of this long tail of microregulatory changes, which are technically incredibly important. However, the priority is to demonstrate commitment and security to those millions of people today who will look to the Government to make a commitment to deliver those in years to come. To put an expiration date on the power could therefore inadvertently prevent the UK ensuring that its statute book complies with its international obligations under the agreements, and put in jeopardy the Government’s unequivocal guarantee to protect citizens’ rights. I therefore urge the noble Baroness, Lady Hayter of Kentish Town, to withdraw this amendment.
Baroness Hayter of Kentish Town
I welcome the noble Lord, Lord Bethell, to the Bill; I assume that this is only the first of his outings on it. I thank my noble friend Lord Howarth, the noble Lord, Lord Kerr, the noble Baroness, Lady Hamwee, and the noble Viscount, Lord Hailsham. I urge the Government to listen to what they say.
Perhaps the Government are saying that there will be so many small technical changes—but we would need to know that. If there was a sunset clause—possibly for longer than two years, as the noble Viscount suggested —we could see whether we are talking about lots of changes, but the Minister has not answered the question of why this cannot be dealt with more properly in a detailed statutory scheme where we will have a greater handle, or a greater grip, on these sorts of amendments.
I am concerned about what is referred to as “complex” or “technical” or a “tweak”. Over the past 10 or 15 years, we have seen pension regulations change: as we brought in civil partnerships, the right to a pension or the age of dependants also changed. These are big issues. These are not small tweaks where you report to this pension authority rather than that one. As has been said, some big issues could be addressed here without giving people outside this House enough time to comment on them. Remember, we are talking about people in Spain and Luxembourg, for example; by the time they hear that a statutory instrument is coming, it will probably have been passed. We are talking about a group of people who are very disparate and yet could be seriously affected by what is said to be a tweak.
I am still slightly concerned that, by enabling this to be there for all time, changes may be made to people’s death benefits, pensions or health provision, for example, without a proper discussion here. It would be a good idea, after I withdraw the amendment, for the Government to look closely at our Select Committee’s recommendation on whether there is a better method of achieving what the Government want to achieve, perhaps through moving an amendment to put in a sunset clause. Perhaps it could be for five years; in that time, we really would be able to see whether it is working as envisaged. Just having an open-ended commitment for all time on issues that will possibly affect people’s pensions or benefit payments seems to be a wide-ranging Henry VIII power.
Viscount Hailsham
Might I make a suggestion to the Government through the noble Baroness? One way would be having an extended sunset clause—for five years, for example—with a power to extend it further through an affirmative resolution procedure if, as the noble Baroness suggested, it appears to be working all right.
Baroness Hayter of Kentish Town
I think that what we are urging is: can we look at this and can we not get hung up on “We don’t want any amendments to this Bill”? If it were a government amendment, it could get nodded through and we could pretend that it had not happened, if the Government want a clean Bill—we will not even tell anybody, just send the tweak through. But it is important to get this right rather than worry about one’s amour propre. For the moment, I beg leave to withdraw the amendment.
ISIS: British People
Viscount Hailsham Excerpts(4 years, 8 months ago)
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Baroness Williams of Trafford
My Lords, we have no intention of letting people fester, but the noble Lord will appreciate the fact that we obviously have no consular access so it is difficult to bring people to justice at the moment. We are in discussion with our international partners about what a suitable solution would look like, with agreement from those partners, in bringing people to justice.
Viscount Hailsham (Con)
My Lords, what steps are the Government taking to ensure that, when a passport is revoked, a person is not left stateless? Does she accept that having a possible claim in another country, based on parental birth or residence, is not necessarily the same as being a citizen of that other country? On a personal note, my mother was born in Dublin so I have a possible claim to Irish citizenship. However, I am not an Irish citizen so if my UK passport was revoked, I would be stateless—which I, at least, would regard as unfortunate.
Counterterrorism: Martyn’s Law
Viscount Hailsham Excerpts(4 years, 8 months ago)
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Baroness Williams of Trafford
I know that the Security Minister met Martyn’s mum on 13 September, and whether legislation is needed is certainly one of the things that the Government are considering. I totally concur with the noble Lord that a lot of regulations are in place, but one thinks of some of the events over the last few years, particularly the shocking event in Manchester—I was there when the first bomb went off and I will never forget that night, particularly as I thought of the children of friends and family. Certainly the Government are seriously considering it.
Viscount Hailsham (Con)
My Lords, while I have a great respect for the views expressed by the noble Lord, may I ask my noble friend to be very cautious about this suggestion? The truth is that all large public venues—for that matter, any venue—are at risk from terrorist attack. The assessment of risk depends primarily on the information and facts known largely to the police and the security services, and is difficult for the organisers to assess themselves. The danger of going down this road is that there will be an awful lot of back-guarding litigation cost and disproportionate expense. I would be very cautious.
Baroness Williams of Trafford
I understand my noble friend’s point. However, take as an example two types of venue: the Parliamentary Estate, and the mitigating measures that the parliamentary authorities have put in around the estate to make your Lordships’ House and the other House safer following the London attacks; and venues where people might go to listen to music, and so on. The Government have a long-standing work programme to provide the owners and operators of these crowded places with high-quality advice and guidance. Therefore, when I say to the noble Lord, Lord Harris of Haringey, that we are considering it, I mean that we need to look at all the various things that are in place and come up with the right solution.
Sexual Offences: Anonymity
Viscount Hailsham Excerpts(5 years ago)
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Baroness Williams of Trafford
I would be very happy to meet the noble Lord—in fact, we met before his Bill had its Second Reading.
Viscount Hailsham (Con)
My Lords, may I say to my noble friend, in support of what has just been said by the noble Lord, Lord Paddick, that the best way forward is to have a presumption in favour of anonymity but to provide the courts with a right to disapply the presumption in the event that the court is satisfied that there is good reason, on application by either party; for example, to obtain evidence that might assist the prosecution or the defence?
Development Co-operation: European Union
Viscount Hailsham Excerpts(5 years, 7 months ago)
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Lord Bates
I am very happy to give that assurance. In fact, it is an assurance that has already been given in the White Paper, which refers on page 68 to our,
“commitments to continue to work together to address global development challenges, supporting a cooperative accord between the UK and the EU on the development and external programming”.
I should say that, as the Minister who has the privilege of attending the Foreign Affairs Council on development, I find that on virtually all the issues that we are raising in discussion we have absolutely common approaches and agendas. Both the EU and the UK are major actors on international development, peace and security, migration issues and humanitarian response, and we want to ensure that that continues—this is not a political point, it is a humanitarian one—for the people that the noble Lord has referenced and that we all care about.
Viscount Hailsham (Con)
My Lords, I say to my noble friend that now that the facts are becoming clearer than they were in June 2015, a more informed choice is now possible. Given that, is the best way forward not to ascertain public opinion by holding a further referendum, the question in which should be whether to remain in the EU on existing terms or to proceed in accordance with the proposed deal?
Lord Bates
There has been a referendum and 17.4 million people cast their opinion in it. There has subsequently also been a general election in which over 580 of the 650 Members of the House of Commons were elected on platforms to respect that referendum. What the Government are now doing is seeking to implement it.
Counter-Terrorism and Border Security Bill
Viscount Hailsham ExcerptsMonday 29th October 2018
(5 years, 8 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
Lord Carlile of Berriew (CB)
My Lords, with great respect to the noble Baroness, I think that we have just heard a gross exaggeration not only about the effect of this clause but also its intention. Judgments as to whether organisations should be proscribed are of course expressions of an opinion by a Minister. They are not perfect judgments, and to that extent I support Amendment 5 tabled by the noble Baroness, Lady Hamwee, and others. The Independent Reviewer of Terrorism Legislation—I think that there are two former independent reviewers in the Chamber today—might well suggest in reports that a proscribed organisation should be deproscribed on the basis, for example, that it is better to deal with the organisation openly in debate than by proscription. I recall during my now somewhat historic time as the independent reviewer that there were strong debates about whether certain organisations should be proscribed or not.
With that reservation, it seems that this clause would achieve the following. First, it recognises that even in this relatively gun-free country, if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives. There are plenty of examples of that having happened, and indeed there are examples of the person who has already been mentioned, Mr Choudary, himself a former lawyer, of having possibly achieved exactly that. It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker. I can see absolutely no reason to allow people to take a risk of which they are aware that potentially will put other people in mortal danger.
Viscount Hailsham (Con)
I am grateful to the noble Lord for giving way. Does he agree that the test of recklessness is a less stringent one than that of specific intent?
Lord Carlile of Berriew
Of course I agree with that, but in my view, and as I thought I made clear, the test of recklessness is entirely appropriate in this situation. If, for example, somebody preaches a sermon while being aware of the risk that he knows or should expect may radicalise another into killing citizens such as Lee Rigby, that to me is a proper protection of our society and the responsibility of the Government. I do not see why that should not be criminalised. I know that the noble Lord, Lord Thomas of Gresford, is an expert on recklessness so I shall give way to him.
Baroness Hamwee
Indeed they are, my Lords, and that was why I very deliberately mentioned security as well as liberty in my opening words. It would be wrong to give the noble Lord an assurance that we specifically discussed those rights in the same way or at the same length as other rights, but I have been in enough meetings of the committee to know that that is a backdrop to the other rights we address. I hope that reassures him. It may not, but I did say that we were not opposing this Bill in any wholesale way.
Amendment 3 would leave out paragraph (b) and instead insert a reference to intention,
“to encourage support for a proscribed organisation”.
Other noble Lords have referred to that at some length. I agree with the point about context made by the noble Baroness, Lady D’Souza—whether this is the point at which to agree with her or not, I do not know. But I do think context assists one to understand what is in the mind of a person making a statement or undertaking an act.
Regarding Amendment 5, I am grateful for the support of the noble Lord, Lord Carlile. His point about open discussion is an important one. I know that he balances the importance of transparency and free debate on these matters. I agree with the noble Baroness, Lady Jones, about “support” and “supportive”. In debate and correspondence, the Government have relied on Section 4 of the 2000 Act as providing a route to apply to the Home Secretary for de-proscription. I do not challenge that, but do not think it is by any means a complete answer to this. The defence in the 2000 Act only protects statements of support related to a de-proscription application. It is not a defence for those taking part in debate outside those proceedings.
The clause creates a new offence, and the Minister in the Public Bill Committee in the Commons said:
“Dealing effectively with the power of inspiration or incitement is not new”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 28/6/18; col. 71.]
I do not read this clause as being about incitement or inspiration. Recklessness is lesser than that.
I have a specific question for the Minister about new subsection 1A(b), which refers to a person to whom a statement, or whatever, is directed. I would like to understand the term “directed”. Are you directing something if it is not addressed to a named person or an identifiable/identified group? If you tweet or post something on Facebook, accessible to the world, are you directing that? The Minister in the Commons made a point similar to the one made by the noble Lord, Lord Carlile. He gave the example of walking down a high street swinging a baseball bat. Are the people who might see a tweet equivalent to the pedestrians in the high street?
Viscount Hailsham
Surely “directed at” is really equivalent to “published”, and the world at large is published, too.
Earl Attlee (Con)
My Lords, my Amendment 6 is in this group. I am grateful for the support from the Opposition Front Bench. I am confident that the Government will have thought very carefully about the need for Clauses 1 to 6, so I support them and share the view of the noble Lord, Lord Carlile. I will leave it to other noble Lords to scrutinise the principles, but I understand the concerns that have been—and will be—raised by other noble Lords when speaking to their amendments.
I have put my name to Amendment 5 and I agree with all that the noble Lord, Lord Rosser, has said. The decision to proscribe a group is not taken lightly. Nevertheless, in a free and democratic society, it is a major step to take and it should be possible to question it. One might want to suggest that proscription is acting as a recruiting sergeant for the group concerned. Under Clause 1, there would be a danger of that suggestion being regarded as a,
“belief that is supportive of a proscribed organisation”,
because it supports the de-proscription. There is also a very fine dividing line between stating that HMG’s policy is flawed and supporting a proscribed organisation.
Earlier this year, I tabled amendments to the Data Protection Bill dealing with press regulation. Some thought that I and other noble Lords were somehow anti-press and against freedom of speech. Nothing could be further from the truth, as we shall see. My Amendment 6 inserts an exemption for opinions or beliefs that are,
“published or broadcast for the purposes of journalism”.
Viscount Hailsham
Will my noble friend tell the Committee whether he thinks there is a distinction between “for the purposes of journalism”—the phrase in his amendment—and “in the course of journalism”?
Lord Davies of Stamford
I have great affection and respect for the noble Earl, but that is no good at all. The idea of creating a special category of people in the key sensitive matter of free speech is bad enough but if you then say that you do not need to define it—in other words, you do not need to restrict in any way the benefit that is being accorded or the possibilities of its misuse—you are on a hiding to nothing. I do not agree with the noble Earl on that subject.
Viscount Hailsham
The noble Lord’s anxieties may be further compounded by looking at the terms of the amendment, because the reference is not to journalists but to “for the purposes of journalism”. What is journalism? It is writing in a newspaper—neither more nor less. That is all it is.
Lord Davies of Stamford
The noble Viscount has reinforced my point with greater eloquence than I could have done.
Lord Anderson of Ipswich (CB)
My Lords, it is an uncomfortable fact that the law as it stands has not been as effective as it might have been in prosecuting radicalisers who have stopped short of inviting support for a proscribed organisation but whose words have none the less been instrumental in encouraging others to support terrorist groups, often by actions, not just words. I shall not rehearse the saga of Anjem Choudary and the many unsuccessful attempts to prosecute him over the years. Clauses 1 and 2 attempt to fill a gap in our law by extending the proscription offences. For that reason I look sympathetically on their general thrust although, like the noble Lord, Lord Carlile, I support Amendment 5.
For my part, I could not vote for an extension of the already strong proscription offences in circumstances where substantial numbers of proscribed organisations— 14 by the Home Office’s own admission, and no doubt more in Northern Ireland—are proscribed despite failing to satisfy the statutory condition for proscription, which is being concerned in terrorism. That would expose people to the risk of long prison sentences for expressing opinions supportive of organisations that have long since laid down their arms and committed to peaceful engagement, but which however remain proscribed because no one associated with them has been willing to go to the expense, or indeed attract the associated publicity, of going to court to get them de-proscribed. My support for Clauses 1 and 2 will therefore depend on the outcome of Amendment 59, which would introduce the meaningful review of proscription orders and which noble Lords will consider on another occasion.
Viscount Hailsham
My Lords, I shall speak briefly to Amendments 3, 4, 5 and 6. I accept that there may well be a need to further criminalise the overt support of proscribed organisations; I do not dissent from that view. However, we have to accept that what we are proposing in the Bill is an infringement of human rights—the right to free speech. The noble Baroness, Lady Hamwee, is entirely right about that. We therefore need to apply the test of proportionality: to weigh up the evil in one hand and then look at the consequences of what is proposed in the other. It is in that context that I would be very much happier—I now speak directly to my noble friend on the Front Bench—if we were to look again at the concept of specific intent. I would be very much happier if what we were providing for was that the offence was establishable only on proof of specific intent. I find myself very much in support of Amendments 3 and 4 because they seem to satisfy the test of proportionality.
To comment briefly on Amendment 5, I find myself entirely in agreement with the noble Lord, Lord Carlile. Anyone who advocates the de-proscription of a proscribed organisation seems to fall foul of the general language of this part of the Bill, and that should not be the case. It is perfectly proper as part of public debate to argue that a specific organisation should not be proscribed. I therefore hope—
Viscount Hailsham
May I just finish this point? Then of course I will give way to my noble friend. I hope the Government will look sympathetically at Amendment 5.
Lord Faulks
I understand what my noble friend says about Amendment 5 but I am little puzzled by why suggesting that a proscribed organisation should cease to be proscribed is supportive of a proscribed organisation. It is one thing to say that proscription should cease; it is another to be supportive of it.
Viscount Hailsham
I wondered that myself but came to the conclusion, having weighed up the language, that to argue that something should not be proscribed probably does constitute action supportive of the proscribed organisation. Even if I was wrong about that, though—in this context my views are shared by the noble Lord, Lord Carlile—it is certainly an arguable position, and I am in favour of clarity in law. That is why I would go with Amendment 5 in the name of my noble friend.
That brings me to Amendment 6, where I am afraid I part company with my noble friend.
Viscount Hailsham
I will give way. On this matter I share the views of the noble Lord, Lord Davies.
Lord Davies of Stamford
I know that the noble Lord will be very familiar with the quotation I was mindful of in what he just said, which was Voltaire’s great phrase: I disagree totally with what you say but would defend with my life your right to say it. In that situation, you might disagree totally with what an organisation stands for. I greatly disagree with what a lot of organisations stand for but would defend—I think to the death—their right to say it. Does this not resolve the matter that the noble Lord has just put to the House? You can at the same time urge the decriminalisation of an organisation that has up to then been regarded as a terrorist organisation while not agreeing whatever with the views that it holds.
Viscount Hailsham
I shall respond to that intervention and then revert to Amendment 6. I have a lot of sympathy with what the noble Lord, Lord Davies, has said. I have always been on the fairly extreme end of libertarianism when it comes to free speech—and, indeed, in many other aspects of life. As a general proposition, it is much better to know what your enemies are saying, not to ensure that they say it covertly. I like to know who my enemies are and what they are saying: it is then much easier to combat them than if you create a context in which everything is done covertly. In principle, I agree with his position.
Viscount Hailsham
I will, but I say for the avoidance of doubt that I have the misfortune to be deaf in one ear. Therefore, when people come up from behind, it is very difficult for me to know that they are there. I hope that I will be forgiven and not treated as discourteous.
Lord Carlile of Berriew
The noble Viscount is fortunate to be deaf in only one ear; I and many others here are rather deaf in both. Leaving that aside, does he agree, particularly having regard to what was said by my noble friend Lord Anderson about Clause 59, that it might be helpful to hear from the Minister something about how the Government review and examine the list of proscribed organisations, so that Parliament can be reassured that it is not simply a static list that never changes? I understand that there is a regular review process, but I may be out of date.
Viscount Hailsham
My Lords, the point made by the noble Lords, Lord Anderson and Lord Carlile, is entirely right. As I get the sense that the Committee wants to hear from the Minister fairly smartly, I shall now proceed to Amendment 6 and deal with it fairly swiftly. I hope my noble friend will forgive that I cannot accept Amendment 6, for this reason: the phrase used is “for the purposes of journalism”. There is no real distinction between the concepts of “in the course of journalism” and “for the purposes of journalism”: they are very close, if not the same. Many of the proponents of the cases of proscribed organisations, including Mr Choudary, often use newspapers to express their view. If you provide a specific defence to cover language in newspapers and people writing in newspapers—that is what the amendment does—you drive a coach and horses through the entirety of this part of the Bill.
The noble Lord, Lord Davies, also has a point here. I am very cautious about making distinctions between journalists and the ordinary citizen. I am very far from persuaded that, as a general proposition, a journalist should have a privileged position as contrasted with the ordinary citizen. I am not able to agree with my noble friend, but I will of course give way to him.
Earl Attlee
I remind the Committee that we give journalists a privileged position in the Data Protection Act and significant freedoms of manoeuvre.
Viscount Hailsham
That is true but there are many aspects of the law where it is not true. I look nervously at my noble friend Lord Faulks, but I think privileged communications to journalists are not covered by the definition of confidential and privileged information in the ordinary and criminal courts. I would therefore be very chary about extending the privilege to journalists qua journalists. There is also a serious point: who is a journalist? When does a career become spent and when is it still operational? There are quite a few problems along that line. I will bring my remarks to a conclusion so that the noble Baroness can respond to the points made by the noble Lords, Lord Anderson, Lord Carlile and many others.
Lord Brown of Eaton-under-Heywood (CB)
Just before the Minister responds, can I add a word, I hope not too tiresomely, on Amendment 5? If you suggest that it would be a good idea to deproscribe a particular organisation, can you do so only on the basis that it is better to deal with it in the open, as suggested by the noble Lord, Lord Carlile, and indeed, by the noble Earl, Lord Attlee, so as to discourage recruitment, or can you say that it is because you regard the organisation’s aims as essentially innocuous or perhaps even beneficial overall? If the latter, surely that would risk destroying much of the effect of Clause 1 as a whole. You would simply couple your remarks with a suggestion for deproscription. If the former, surely the amendment, if it is to be incorporated in this legislation, had better build in the need to make it plain that at the same time as promoting deproscription, you continue to condemn the aims of the organisation.
Palestine: Refugees
Viscount Hailsham Excerpts(6 years, 5 months ago)
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Lord Bates
As the noble Lord will know from his immense experience in this area, the Government and officials are having meetings with their opposite numbers in the United States, seeking to understand the position in relation to that. As we understand it, a tranche which was due to paid of about $65 million was withheld, the basis for which can vary depending on who you talk to. Part of the reason from the US is that it wants to encourage more international donors to step up to the plate to help to fund UNRWA—and, on that point, I think that it has something to say. The largest bilateral donors are Germany with $76 million, Sweden with $61 million and the United Kingdom with $60 million, while the United States contribution last year was $364 million. It is a huge contributor to UNRWA and, as well as the international community rightly challenging the importance of the humanitarian assistance from the United States, we should recognise the significant contribution that the United States makes to UNRWA’s important work.
Viscount Hailsham (Con)
My Lords, at his next meeting with the American Secretary of State, will the Foreign Secretary encourage him not to build the American embassy in Jerusalem but rather to renew the funding to the agency referred to in this Question?
Lord Bates
The Prime Minister has already made her position very clear. On 6 December she said:
“Our position on the status of Jerusalem is clear and long-standing: it should be determined in a negotiated settlement between the Israelis and the Palestinians, and Jerusalem should ultimately be the shared capital of the Israeli and Palestinian states. In line with relevant Security Council Resolutions”.
That is why we took almost unprecedented action at the UN Security Council in supporting the Motion, and at the UN General Assembly. We regard the idea as unhelpful to the peace process.
Brexit: Costs
Viscount Hailsham Excerpts(6 years, 7 months ago)
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Lord Bates
Certainly, in relation to the ongoing programmes and relationships we are having, once the negotiations have been completed, it is important that we ensure that the British taxpayer understands the importance and value of those ongoing relationships as part of the wider settlement.
The Earl of Courtown (Con)
My Lords, we shall hear first from the noble Viscount, Lord Hailsham, and if there is time, from the noble Lord, Lord Robathan, afterwards.
Viscount Hailsham
My Lords, as a committed remainer I say to my noble friend that if the reports are true, I welcome them. Is it not also correct, however, that they are difficult to reconcile with the advantages identified by the Brexiteers in the course of last year’s referendum campaign? Should we not treat those stated advantages with a degree of caution?