Detainee Issues

Baroness D'Souza Excerpts

Thursday 18th July 2019 Lords Chamber

[Lord Young of Cookham]

I mean no disrespect to members of the judiciary, but having a judge-led review does not always lead to closure, which is the case that has been made in this example of a reason for having a judge-led review. In addition to the cost, which I will come to in a moment, there would be a serious diversion of energy and attention by those involved were we to carry out a judge-led review. As for the cost of inquiries, the Saville inquiry cost £192 million, the Chilcot inquiry cost £13 million, and the Gibson inquiry, which was incomplete, cost £2.3 million. My noble friend is right to put on the table the fact that these judge-led reviews have resource implications.

[Baroness D’Souza (CB)]

My Lords, on Monday we were reminded by the noble Lord, Lord West, that no UK personnel were directly involved in the torture and abuse of detainees, but in view of the 2018 report from the ISC, which revealed that the practice of rendition and the mistreatment of detainees were much more prevalent than we had hitherto known, does the Minister accept that there must therefore be people in the UK, sometimes at very senior level, who were aware of these practices and the mechanisms by which detainees were transferred around the world, and were therefore complicit?

[Lord Young of Cookham]

The short answer is that I do not know whether there were people who were aware but did not take the appropriate action. One of the recommendations of Sir Adrian’s report is that in future, if you become aware of any mistreatment, you are under an obligation to report it. On her first point, the noble Baroness is absolutely right that the ISC found no evidence of direct maltreatment by our staff. It is right to pay tribute to our intelligence and security staff, who work hard to keep us safe, often in challenging circumstances. I pay tribute to that work but, against the background of the exchanges we have had, it is right that they should be held to the highest possible standards.

Detainee Mistreatment and Rendition

Baroness D'Souza Excerpts

Tuesday 16th July 2019 Lords Chamber

[Lord Young of Cookham]

Because I do not have it. My noble friend will know that there is a process to be gone through. The announcement yesterday was in response to an Urgent Question; it was not planned by the Government. The announcement planned by the Government will take place later this week, as announced by the Chancellor of the Duchy of Lancaster yesterday.

[Baroness D'Souza (CB)]

My Lords, at a time when the UK needs to do all it can to boost its reputation for upholding the rule of law, and when it is possible that next week we will have a Prime Minister who has publicly condoned waterboarding, could the Minister reassure the House that any forthcoming Statement will be the result of examination of and statements from all witnesses to these practices?

[Lord Young of Cookham]

The Government will take all the relevant evidence into account when they announce their decision later this week. As I said, we are clear in opposing torture. The issue in debate is the extent to which it is alleged that there was knowledge of, or complicity in, the treatment of detainees in other countries. It is worth making the point that there is now a robust independent oversight regime that we have introduced over recent years. The changes in the Justice and Security Act 2013 and the Investigatory Powers Act 2016, the changes in the powers of the ISC and the statutory basis for the Investigatory Powers Commissioner have all ensured we have a robust, independent oversight regime, which I think is more transparent than nearly every other country.

European Union (Withdrawal) Bill

Baroness D'Souza Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, clearly there are many hundreds of occasions, set out in the Bill, when delegated legislation is, and should be, acceptable—for example, to remove rights that become redundant after Brexit, such as the right to participate in European elections. Furthermore, the Government face a herculean task in transposing EU law into UK domestic law, and the use of delegated legislation serves the interests of expediency and is not necessarily malign in intent.

That said, the mantra that accompanies the Bill is that it is an enabling mechanism, not a decision-making one. The purpose, we are told, is practical and not policy-oriented. But here I have to disagree with my noble and learned friend Lord Brown of Eaton-under-Heywood and agree rather more closely with the noble Baroness, Lady Lister of Burtersett, in the expression of her concerns. We are told that the Government have excluded the European Charter of Fundamental Rights from the Bill. This exclusion conflicts with the general rule of maintaining the status quo and represents a weakening of human rights protection for UK citizens. Furthermore, it represents a major policy change, something the Government explicitly make clear they do not wish to do by avowing that,

“the same rules and laws will apply after exit as on the day before”.

What does the charter add to the armoury of human rights protection enjoyed currently by UK citizens? The charter is at present part of our domestic law but will not be so after Brexit. It gives UK courts the right to strike down any legislation that infringes charter rights as set out in the general principles of EU law. As such, it is an important tool, affecting rights to education, bioethics, academic freedom, conscientious objection, a fair hearing and an effective remedy, among other rights. The charter also covers digital and asylum rights and pension rights for LGBT people, and it safeguards maternity rights.

The charter has been used in recent years to challenge indiscriminate bulk collection of personal data, and/or by those employed by foreign London-based embassies to ensure fair job treatment and to protect privacy from government intrusion. Crucially, it has been used to ensure that the Government cannot make decisions balancing individual rights and national security in secret. The key feature of the Bill is that it removes the right of challenge in the UK courts for breach of the general principles of EU law. There is no counterpart legislation in UK law to deal with these challenges. So while we are busy transposing EU law into British law, we will wholly bypass the European Charter of Fundamental Rights and it is therefore legitimate to question why.

The Government argue that there is no need for the charter since “all” the rights contained within it are already covered by other legislation including, for example, the UK commitment to the European Convention on Human Rights and the Human Rights Act 1998. However, I remind noble Lords that the Government have also, at other times, expressed the contrary view that the charter adds an extra layer of rights domestically, which is perhaps something they now consider undesirable. While it is the case that similar charter rights are covered in the ECHR and domestic law, there are, as already mentioned, very important omissions.

The Government assert that while every other EU law will be retained, they single out the charter for exclusion, and we are therefore justified in asking them to demonstrate how, where and when there will be legislation to protect the full panoply of rights. It is interesting to note that the opt-out of the charter in the Bill is in marked contrast to the specific safeguards granted, for example, for the use of delegated legislation in relation to taxation and to amendments to the Human Rights Act.

On Report in the other place, the Secretary of State said,

“it is true that after exit it will not be possible for an individual to bring a free-standing claim or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law”.—[Official Report, Commons, 11/9/17; col. 585.]

It is difficult not to see this as anything but a pretty major policy change. If the Government wish to revise their human rights protection policies, which they have every right to do, perhaps the withdrawal Bill is not the best place to do it. Such major policy changes should come before both Houses of Parliament in the normal way and be open to detailed scrutiny and amendment. This is a matter of great importance and not one to be roughly pushed aside in the context of the withdrawal Bill.

Finally, the law has to be clear. People must know their rights and, most especially, when and how they might be threatened and what redress is open to them. As was said in the other place:

“The whole point of the charter was to gather all the rights and protections that existed … in other places and put them into one document”.—[Official Report, Commons, 17/1/18; col. 1006.]


Now they are to be once again scattered, weakened and made less accessible. We should retain the charter within the Bill, together with a commitment that Government will not use their delegated powers to weaken substantive human rights and equalities protections by losing the mechanism to enforce those that we currently enjoy from Europe.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Baroness D'Souza Excerpts

2nd reading (Hansard): House of Lords
Friday 8th September 2017 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, I shall begin by making it clear that there is nothing ad hominem about this debate. We are extremely fortunate to have hereditary Peers providing expertise on development, aid, science, transport, the environment, learning, health, defence, law and business, among many other fields. Those Peers also regularly contribute to a host of other issues that come before the House, more often than not with a particular kind of disinterest that makes their contributions all the more valuable.

Today, we are discussing the principle of maintaining the 90 or so hereditary Peers in perpetuity by means of elections. We have heard the argument that it was a promise made at the end of the last century that must be honoured until full-scale stage two House of Lords reform takes place. That argument becomes weaker by the day. Over the last decade and more, the House has changed significantly by means of incremental agreements; now, we will possibly be discussing a degree of enforced voluntary retirement to reduce our numbers. We already have the power to debar those convicted of serious criminal offences—changes that would have been unthinkable only a few years ago. The circumstances whereby this odd situation arose are well-known: it was a deal in the interests of getting the main elements of the House of Lords reform Bill passed in 1999. The crucial amendment was tabled by the late, and much lamented, Lord Weatherill, who himself subsequently proposed a Private Member’s Bill to end hereditary by-elections.

In 2007, a survey of Peers resulted in 71% agreeing that hereditary by-elections should cease; yet support in the Chamber for the subsequent Constitutional Reform and Governance Bill—CRAG—was notable by its absence, thereby allowing a small group of Peers to talk it out. The view that any legislation now would be a breach of faith, if not contrived, is certainly not put forward with the best interests of the House in mind.

Phasing out hereditary by-elections is never going to be an easy fix, but there are some legitimate concerns, one of which is the potential imbalance between the two main parties, were there to be a cessation of by-elections. Another is that we, as a Chamber, might be spurning unique experience or expertise by abolishing by-elections. Surely there could be a system whereby hereditary Peers wishing to sit in the Lords could apply, like others, to be Members based on criteria such as expertise and willingness to contribute regularly. That system could be weighted to reflect a more equitable balance between the parties.

I know that a hustings system, which helps to select hereditary peers who offer expertise, is now routine, but it is still the operation of a hereditary principle. That is what sits uncomfortably with the image of the House of Lords that most of us wish to promote—that of a spare, experienced and expert body of people, carrying out a vital scrutinising role and thereby acting as a constant check on Government powers.

It is too easy for critics, of whom there are many, to lob brickbats at us: we are unelected; we are too many; we are unrepresentative; we are elitist. It is this latter charge that we could relatively easily dispense with. In the past few years, a number of mechanisms have been employed to derail efforts to confront the hereditary issue. These have included what cannot be called other than filibustering, and of course the continuing heavy reliance on the commitment made before the passing of the 1999 Act. Perhaps a further factor might be the unwillingness of many in this Chamber to state publicly their belief that the practice of by-elections should now be phased out.

A rational, thought-through argument upholding the hereditary principle has yet, in my view, to be articulated. I therefore hope that this Bill will continue its passage through this House, and an accommodation will be reached that reiterates the value of the hereditary Peers we are fortunate to have but recognises—perhaps sadly—that the principle must now come to an end.