Illegal Migration Bill

Debate between Viscount Hailsham and Baroness Butler-Sloss

Report stage
Wednesday 5th July 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will speak briefly in support of Amendment 156A, although I regret the limited nature of the appeal contemplated by that amendment. I very much welcome Amendment 158A, in the name of the noble and learned Lord, Lord Hope.

As a matter of principle, I am very much in favour of giving individuals the right of appeal although, as I said when I intervened on the right reverend Prelate, I fear that his amendment provides for a more limited right of appeal than I would wish.

A decision on the age of an individual is critical in determining a person’s status under the legislation. I am concerned that, in many instances, the original decision about age will be made in a somewhat perfunctory manner. I imagine that immigration officers may get rather impatient and make rather perfunctory decisions. At the end of the day, age is a matter of evidence and I cannot find any persuasive reason why the original position on age should not be challenged. In my view, the right of appeal should extend to appeals based on the ground that the relevant authority had made a mistake of fact. That is what the noble and learned Lord seeks to achieve in Amendment 158A. However, if I have correctly understood the amendment and its relation to the Bill, the grounds of appeal are limited to those set out in Clause 56(5) of the Bill as it stands. The grounds specified there are essentially judicial review grounds—for example, that there was some procedural unfairness, or the ground of irrationality—and appeals based on fact are expressly excluded. I regard that exclusion as highly regrettable.

To meet some of the anxieties that I fear will be expressed by the Minister regarding my comments and the amendments, I make this point as well: the rights of appeal could be abused, and I would therefore like the burden of establishing the appeal to be on the appellant. It must be for them to satisfy the relevant appellate body that the grounds of appeal are made out. That may in fact be the existing law and practice—it has been such a long time since I practised in that field of law that I simply do not know. If it is not, it should be, and it would meet many of the anxieties likely to be expressed on the government Benches.

[Baroness Butler-Sloss (CB)]

My Lords, I understand very well the child rights impact assessment on this issue. Naturally, the Government are concerned about people’s ability to pretend that they are under age when they are not, but that does not in fact deal with the underlying problem: there are a large number of children from countries outside Europe who mature much more quickly, certainly quicker than children in western Europe.

I remember going on a visit to Safe Passage, which was offering a drop-in centre for young men under 18. A number of those I met, and whom Safe Passage was absolutely satisfied were under 18, had beards or moustaches. If such person is interviewed by the Home Office, will it not immediately assume that a moustache or beard absolutely means that they are over 18? In the case of some of these young people, that will be incorrect.

I also remain very concerned about the issue raised by the noble and learned Lord, Lord Hope, in relation to Clause 5. If the issue is, as I suspect it will be, that they got it wrong, it is not necessarily—or probably not ever—an issue of law but a question of fairness. It is a question of dealing fairly and in the best interests of those who are genuinely under 18.

Reading through the child impact assessment, what depresses me is the suggestion regarding the extent to which the Government are following the principles of the Children Act—which every Government in my lifetime have followed—and looking out for the best interests of children. They are saying it again and again and, quite simply, doing the exact reverse. This is extraordinarily depressing.

Retained EU Law (Revocation and Reform) Bill

Debate between Viscount Hailsham and Baroness Butler-Sloss

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will very briefly support what the noble Lord, Lord Anderson, said. I agree with all of his detailed arguments, which were extraordinarily well put.

I will focus on two general points. First, in principle, I am very much in favour of increasing the control of Parliament over the legislative powers exercised by the Government. That is increasingly the case because Governments of all stripes are increasingly using secondary legislation to make very substantial changes to our laws. I want to see much greater parliamentary control.

Secondly, and differently, this issue goes to the amending power included in subsection (3) of the proposed new clause—I am very much in favour of that. For the many years I have been in Parliament, I have been deeply troubled by our inability to amend secondary legislation. What is being proposed by the noble Lord, Lord Anderson, is a mechanism; it may be rather a tricky one to use, but I hope it will be a precedent. It is one that I strongly support, because it is important for this House and the House of Commons to be able to amend statutory instruments. So if the noble Lord moves his amendment to a Division, I shall support it.

[Baroness Butler-Sloss (CB)]

My Lords, I too strongly support what the noble Lord, Lord Anderson, and the noble Viscount, Lord Hailsham, said. I cannot resist telling the House that I am chairman of the Ecclesiastical Committee, and some years ago the most reverend Primate the Archbishop of Canterbury was discussing a measure that was coming through our hands before going to Parliament, which had a clause that would allow the General Synod to make almost any changes to any law in England. We pointed out gently that it would not get through Parliament. Dear, oh dear, what are we talking about today? I would not have been quite as gung-ho about what could not happen in Parliament if I had come across this Bill and, I have to say, the Illegal Migration Bill.

The point that the noble and learned Lord, Lord Judge, was making about delegated powers—I remember that speech very well—is one that I am delighted the noble Lord, Lord Anderson, has taken up. The noble and learned Lord, Lord Judge, was saying that there will come a point when we will actually vote against secondary legislation—and maybe the time is just beginning to come. If we end up with having no power in Parliament, in either House, to decide whether laws that are different from those we have can be argued in either Chamber, what is the point of us being here? Consequently, I do feel that the House should support the noble Lord, Lord Anderson.

Retained EU Law (Revocation and Reform) Bill

Debate between Viscount Hailsham and Baroness Butler-Sloss

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I agree with what has just been said by the noble Baroness, Lady McIntosh, and I speak only with reference to the Court of Appeal of England and Wales, of which I was a member for about nine years. We regularly considered cases from all over the world—the High Court of Australia, the Supreme Court of the United States, the Hong Kong Court of Final Appeal, or any court that had similar law to the law of England and Wales. We considered them, but none of them was, or is today, binding. It is absolutely unnecessary to put this in, and I have to say I find it offensive to judges who have treated these cases in the way I have just explained for many years. I was on the Bench for 35 years, and I looked at these cases many times. I would be offended to be told I could not apply them as part of English law, because I knew that from my childhood, for goodness’ sake.

[Viscount Hailsham (Con)]

My Lords, I am going to speak briefly about Amendments 83, 84, 87, 87A and 87B. I do so as a jobbing barrister, with some diffidence, because I note that the noble and learned Lords who have put their names to these amendments have not yet spoken. Indeed, I do not think they are in the Chamber. I am against the provisions in the Bill, and I am going to outline my reasons.

When drafting legislation, we need to ensure clarity. Laws need to be clear, unambiguous and capable of being understood by members of the public, otherwise compliance is impossible. Furthermore, to ensure justice, advisers need a degree of certainty and predictability as to what the law is or is likely to be when they have to advise on it, otherwise, as I say, justice will not happen. When one applies those criteria to the provisions in the Bill, one becomes profoundly uneasy. The phrase found in new paragraph (b) in Clause 7(3), “any changes of circumstances”, is astonishingly broad. It would apply to any change of circumstance without any regard to degree or nature.

The same sort of criticism applies to new paragraph (c), on

“the extent to which the retained EU case law restricts the proper development of domestic law.”

But what do we mean by “proper development” of domestic law? Who is to judge what is proper? Are we to contemplate judge-made or statute law, which are extraordinarily different? Does this concept not drag judges into political and perhaps partisan areas? A determination by a judge on what the law ought to be is, in many senses, to intrude into a political decision that judges would be well advised to avoid.

Precisely the same criticisms apply to the word “influenced” in new paragraph (a) in Clause 7(4), to which Amendment 87 applies. They also apply to the phrase “would depart”, to which Amendment 87A applies. Giving practical interpretation or advice on the meaning of these words is almost impossible, which inevitably impacts on compliance by individuals and the doing of justice by the courts. For the reasons that I have briefly outlined, these proposed provisions, as presently incorporated in the Bill, are profoundly objectionable and should not feature in this legislation—but, in conclusion, I say that this applies to the entirety of the Bill.

Police, Crime, Sentencing and Courts Bill

Debate between Viscount Hailsham and Baroness Butler-Sloss

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Viscount Hailsham (Con)]

I rise to express my grave concerns about this new clause, which I hope will not be enacted, although I am bound to say that I am rather pessimistic about that.

I will begin by saying something about procedure. I regret that this new clause is being brought forward on Report. The formal announcement of it was by way of a press release on 24 November this year. As the Minister has said, the new clause was triggered by the very distressing case of the killing of PC Harper. We need to keep in mind that the relevant trial took place in July 2020, and it came before the Court of Appeal for consideration in December that year. I suggest that it is hard to see why the new clause could not have been introduced in the House of Commons or, if that were not possible, in Committee in this House. In either event, there would have been a greater opportunity for discussion, both inside and outside Parliament.

All of us will have the greatest sympathy for PC Harper’s wife and family. However, we should be very cautious about legislating as a consequence of a single case or even a number of cases, however distressing they may be. I have referred to the trial in 2020 and the decision of the Court of Appeal in December that year. My noble friend referred specifically to them. In both those cases, very serious and detailed consideration was given to the appropriate sentence, and, as my noble friend has said, the Court of Appeal rejected the submission of the Attorney-General that, in the case of the defendant Long—the most culpable of them—the sentence should be increased to a life sentence.

I suggest that anyone who studies the judgments of the courts, together with the guidelines of the Sentencing Council—the relevant ones were published as recently as November 2018—will be satisfied that the existing law makes proper provision for the punishment of offenders convicted of serious offences of manslaughter and gives proper protection to emergency workers.

As your Lordships will know, manslaughter covers a very broad spectrum of culpability, extending from the very serious—the killing of PC Harper is an example of this—to many things that are very much less serious, such as a single blow that fells an individual, who strikes his head on the pavement and dies. In all conscience, that is an act of common assault, although the consequences are dreadful.

In the case of PC Harper, the trial judge stated that, had the defendant Long been a few years older— he was 19 at the time of the trial and 18 at the time of his offence—he would probably have been given a life sentence. So we need to be clear about this. A life sentence is already available for serious cases of manslaughter, where the trial judge, who has heard all the relevant facts, thinks that such a sentence is appropriate. Your Lordships are being asked to approve a mandatory life sentence in circumstances in which the trial judge might otherwise determine that one is not appropriate. I am deeply uncomfortable with that, especially when I consider the broad spectrum of culpability that arises in manslaughter cases.

Consider a police officer who intervenes in a street brawl, in or out of uniform—it might be a plain-clothes officer. The officer is struck by a single blow or trips in the course of a scuffle. He or she falls, hits their head on the pavement and dies. If the deceased person had been a civilian killed in such circumstances, the court would impose a relatively modest determinate sentence, but, in the case of the police officer and subject to the subsection (2) provisos, which I will shortly mention, the court would have to impose a life sentence. I do not believe that that can be right.

I said that I would speak briefly, if your Lordships would allow me, to proposed new subsection (2), which was briefly referred to my noble friend the Minister. Subsection (2) refers to the exceptional circumstances that relate to the offence or the offender and make it just not to impose a life sentence. The question that arises and must be considered is: what does that mean? Does that mean that, if the judge thinks that the offence falls at the lower level of culpability, a modest determinate sentence can properly be imposed? If that is the case, what is the purpose of the new clause? If such a discretion is not available to the trial judge, it is surely inevitable that injustice will happen on occasions.

At that point, we come to a related matter. We are talking here about not “whole life” cases but life-sentence cases in which a trial judge must impose a custodial tariff. Is the trial judge entitled under these provisions to set a modest determinate tariff in order to address a low level of culpability? If that is the case, what is the point of the new clause? If it is not the case and the trial judge may not impose a modest tariff, it is extremely unjust.

I have one final point, and I acknowledge that it is about drafting. Consider the following circumstances, which fall within proposed new subsection (3)—I will not read it out because it is on the Marshalled List and I do not want to detain your Lordships’ House. An off-duty officer in plain clothes, whose identity as a police officer is not apparent, intervenes in a street brawl or seeks to apprehend a fleeing thief. In the scuffle, he or she falls over, hits their head and dies. Is it right that, in those circumstances, such a defendant should automatically face a life sentence, unless the subsection (2) provisos apply?

I am profoundly uncomfortable with this new clause, and I would like to think that it will not pass.

[Baroness Butler-Sloss (CB)]

My Lords, I share the serious concerns of the noble Viscount. Given the degree of pressure that the Government have been under, understandably, after the shocking death of the police officer, they may have strayed too far into imposing upon the judiciary something that is not necessary, in my view. If they remain concerned about the extent to which the Sentencing Council may not have properly reflected the seriousness of an emergency officer being killed, it is perfectly simple to ask it to reconsider this. I suspect that, in the light of PC Harper, it might well do so.

Following what the noble Viscount has just said, I am particularly concerned about the off-duty, plain-clothes police officer, fireman or anybody else who intervenes—very properly, feeling it is his or her duty—and suffers a fatal injury. The situation is as the noble Viscount said: it really does go too far. I understand very well why the Government think it needs to be done, but I wish they would reflect on this, and think again before it goes back to the House of Commons.