European Convention on Human Rights

Baroness Jones of Moulsecoomb Excerpts

Monday 18th July 2022 Lords Chamber

[Lord Bellamy (Con)]

I am not in a position to give fatherly advice to anybody. The Government do not support misogynistic or Islamophobic attacks on anyone. I have set out as clearly as I can the Government’s policy, and I shall doggedly pursue that policy unless and until instructed to the contrary.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it must be obvious that our suspicion stems from having had a lot of legislation come through this House that has shown no concern for human rights or political freedoms, which is what the ECHR is all about. How can we be sure about the next Prime Minister—a Tory party Prime Minister from the collection of leadership candidates that we are all horrified about?

[Lord Bellamy (Con)]

The aim of the proposed legislation is to restore public confidence in the UK judiciary, to improve democratic accountability, to strengthen the right to free speech, to preserve the right to jury trial and to better protect journalists’ sources. I defy anyone in this House to vote against those objectives.

Judicial Review and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, Clause 1 gives judges a new power. I suggest that this is a power which enables them to do justice better between the parties, and to avoid some of the hard edges which currently obtain. Remedies in judicial review have always been discretionary. Nothing about this clause changes that; it simply gives judges an extra club in their bag. It is notable that the clause is shot through with the word “may”.

The clause—the presumption apart—has survived scrutiny by the Bingham Centre for the Rule of Law on rule of law grounds. It has been welcomed by many judges. Despite what the noble Lord, Lord Marks, said, it is not obvious to me what the problem is with it. On re-reading some of the speeches at Committee, a lot of the opposition to the clause was on the basis that it gave the judges too much power. It is something of an irony that the rhetoric against the Government’s plans in respect to judicial review was that they were intending to clip judges’ wings in an executive power grab. Now the objection is that judges will have too much power and will make inroads into what has sometimes been described as the “metaphysics of nullity”.

I assure your Lordships that the Independent Review of Administrative Law was genuinely independent. I suppose that I might be regarded as having a political bias, but no such allegation could be made against my fellow panellists. It is unfortunate that the Labour Party oppose this clause in its entirety—this looks a little bit like political posturing. I very much hope that the House will not be divided on this.

The most compelling argument in favour of the clause can be found in the article published in the Times last week by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which I hope that many of your Lordships have read. The noble and learned Lord is in his place today but, as I understand, he may not speak because he cannot be here throughout the entire debate and, with a great adherence to the customs and practices of your Lordships’ House, he will not necessarily intervene. His cri de cœur at the end of the article was to regret that the power which is given by this Bill in Clause 1 had not existed when he was sitting in the Supreme Court in HM Treasury v Ahmed. Indeed, it is unfortunate that it was not.

The objection to the presumption is, on the other hand, much more understandable. There seems to be two points: does it fetter the judge’s discretion and, if not, does the presumption add anything? I am not convinced that it will fetter the judge’s discretion. He or she will be able to grant the relevant remedy so as to do justice in the particular case. I do not expect a judge to come to a conclusion which he or she would not have reached because of the existence of this rather weak presumption. Putting myself in the position of the hypothetical judge, I would not be diverted. Our judges are made of much sterner stuff.

So why have the presumption in the clause at all? I have struggled a bit with this. The clause does give the judge more flexibility; perhaps the presumption is doing no more than reminding the judge of the new power. I was reminded slightly of the old television advertisements for washing powder. There is only so much you can say about the quality of washing powder once you have emphasised that it washes white, or whiter still, or whiter than other soap powders. Consequently, advertisers used to draw the viewers’ attention to “a new added ingredient”. That is perhaps what the presumption is there for. However, I think that Clause 1 will survive without it.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, as I have reminded your Lordships’ House before, I have no legal training and so I will use very simple language here.

I have a huge amount of respect for the noble Lord, Lord Wolfson, and I just cannot believe that he is going to convince the House that the Government are right on this because even from a simple point of view, which is what I am going to express, it seems an unjustified attack on the rule of law. Clause 1 is wrong in essence. The noble Lord, Lord Faulks, mentioned an extra club in the bag for judges. I immediately thought of one of the clubs that early humans would have carried around to kill wolves or whatever, but of course he meant a golf club. I can see that he might think an extra golf club is useful, but judges do not need it. Judicial reviews are already difficult, by design, to bring. There are very short timescales in which any claimant can initiate proceedings, and this will reduce the impact on certainty of decision-making. The Government want these hurdles to still be in place, making it hard to win a claim, but now even if you win there is almost no point in bothering.

Restricting judicial reviews in this way will undermine good government. It prevents justice for people who have been done wrong by public authorities, and it lets wrong decisions stand, even where those decisions were unlawful, irrational or procedurally unfair. Democracy goes only so far. Without being tied to the rule of law, we face the tyranny of the majority and an elected dictatorship, which, I argue, is what we have already. My noble friend and I will vote for all these amendments, as unlawful decisions must not be allowed to stand unchallenged.

[Lord Judge (CB)]

My Lords, I am in the happy position of having somebody agree with me on every point—but not everybody agrees. The Minister is a remarkable advocate. If he came to my home and we had a family cat, after he had spoken for about two minutes the cat would be convinced that if it wanted a fish, it should dive deep down into the sea, find one at the bottom and bring it out.

The Bill provides a new, additional remedy, and it is a very wise step. Can we please consider situations in which judicial review is involved? A massive judicial review proceeds against—it does not matter who—the Government, a ministry, a local authority, and at the end of the hearing the judge finds there is no unlawfulness about this, that and the other, but yes, there was a moment when the decision-making process was flawed because a small procedural step was not taken. It should be open to the court, having listened to arguments on both sides, to say that that procedural irregularity, although demonstrated, has not affected anybody and therefore the order will not be quashed so all the matters that were in argument can proceed. I see no difficulty about that.

My real problem is that I am very troubled about the way in which the new remedy is circumscribed with the presumption. It gives the opportunity for inaction to the wrongdoer. The Minister said that there is not a very heavy presumption, not much to make a fuss about, besides which there is the development of new jurisprudence—I love the idea of the Government wanting judges to develop new jurisprudence in the field of judicial review and I am very grateful to the Minister for that offer—but the only thing expressly required of a judge considering judicial review is to apply the presumption. Why is there not a presumption or a consideration that says that the judge must look at how determined the wrongdoer was to persist in his unlawful action? That would a consideration too, would it not? There is none of that in the Bill—it is just simply this presumption. I respectfully suggest that it is a heavy presumption, because it is the only one which appears in the Bill or which directs the court to a particular starting point.

As for the specialist judges—and they are specialist judges—the idea that they will not know about this new remedy and consider it is simply barking. Even if the judge had a bad moment and forgot about it, can you imagine any advocate acting for the wrongdoer who wished to have the order stand not drawing his or her attention to the presumption and saying, “This is the starting point, my Lord”? The judge will wake up and think about it. To enact legislation to encourage judges to develop jurisprudence is, if I may say so, one of the least good arguments that the noble Lord, Lord Wolfson, has offered in his whole forensic career.

Judicial review is a discretionary remedy. The judge, having considered whether unlawfulness has been established —that is the first question and let us not overlook it—finds that it has. He then examines the nature of the unlawfulness. Is it fundamental? Is it procedural? Is it important procedural? Is it minimal procedural? Then he or she reflects on all the considerations that have come to bear—in other words, all the facts of the case—and makes a decision. Judges really do not need to have more than the broad discretion that judicial review has always offered, and which has made it one of the most fantastic developments in our administrative law in my professional career.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, as the Minister said a short while ago, this is a very ancient office, but the genius of our system, and of the coronial system, is that it has moved and adapted itself over the centuries. Over the last 20 or so years, inquests have changed beyond all recognition. The amount of money and resource now devoted to them, and what the public expect from them, is enormous. It cannot be right that, where the state is involved and has heavy representation, the bereaved family is not also provided for by the state. The coroner cannot remedy that. It is a myth to say that he can do this through his inquisitorial powers; that is simply not possible when you need expert and other evidence, and trained lawyers. I very much hope that the Government will seriously consider this. It is a very modest amendment and I warmly support it.

[Baroness Jones of Moulsecoomb (GP)]

I rise not to add any contribution on the legal side of things but just to add a little moral outrage, because this is an injustice. We all understand, I think, that the lack of public funding for bereaved families at inquests and inquiries just compounds their suffering. It is also very inefficient, because the point of having competent lawyers in court is that they can assist the court in the administration of justice. They can navigate complex issues of fact and law, which means that a just decision can be reached. It also provides the public with a huge service, because we all have to have confidence in the state to keep us safe in its custody and control.

I admit that it is hard when we have a Government such as this, but even so, I think we all understand that every death in police custody, prisons, mental health institutions or any other setting must be fully exposed through the inquest system, and this cannot be done without legal representation for bereaved parties. Without public funding it is actually a tax on bereaved families. It is time for your Lordships’ House to end this injustice by convincing the Government that they have to allow this amendment through.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to noble Lords for their contributions to this short debate. I am conscious that the fact that the debate has been relatively short is not a reflection of the importance of the issue. On the contrary, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, this is a long-running issue. It is not quite as long- running as the coronial office, but it has been before the House before and doubtless it will be again.

I start by assuring the House that the Government believe that bereaved families should be at the heart of any inquest process, but we consider that, although there are some exceptions, which I will come to, legal representation and legal aid are not required for the vast majority of inquests. As I said on the previous group, the coroner’s investigation is a relatively narrow-scope inquiry to determine who the deceased was and how, when and where they died. In my meeting with Inquest last week, we obviously discussed the availability of legal aid for inquests. Again, I should put on record that although there are undoubtedly areas where Inquest would like the Government to go further, we had a productive and useful conversation.

Amendments 25, 26 and 27 all seek to expand access to legal aid at inquests. However, the amendments would also make that access to legal aid entirely non-means-tested. That would lead to significant and potentially open-ended cost to the taxpayer. It would also go against the principle of targeting legal aid at those who need it most, because these amendments would provide public funding for those who could, in fact, afford the cost themselves. Over and above that, I am not persuaded, with respect to my former and current colleagues, that having more lawyers at an inquest will provide an improved experience for the bereaved. Indeed, it could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which would likely prolong the distress of bereaved families.

We do, of course, recognise that bereaved families need support and guidance. We have been working on several measures to make inquests more sympathetic to the needs of bereaved people. That includes publishing new guidance on the coroner service for bereaved families, engaging with the chief coroner on training for coroners and developing a protocol. I think this goes to the point made by the noble Lord, Lord Thomas of Gresford, that, where the state is represented, the protocol now is that the state will consider the number of lawyers instructed, so as to support the underlying inquisitorial approach to inquests.

I turn to the availability of legal aid. First, legal help is available under the legal aid scheme, subject to a means and merits test, which bereaved families can access if they require advice and assistance. Further, where certain criteria are met, legal aid for legal representation may be available under the exceptional case funding scheme. Where these criteria are met, we are of the view that that process should be as straightforward as possible. Therefore, as of January this year, there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted.

Thirdly, we considered our approach to initial access to legal help at inquests in our recently published Legal Aid Means Test Review. This is something of an intimidating document, but I invite interested noble Lords to have a look at it. There, we have proposed to remove the means test for legal help in relation to inquests which relate to a possible breach of rights under the ECHR—it is generally Article 2, but not exclusively—or where there is likely to be significant wider public interest in the individual being represented at the inquest. We published that review on 15 March; a full consultation is currently open and will close on 7 June.

For those reasons, which go both to the nature of the inquest and what the Government are currently doing in this area, I invite the noble Lord who is proposing the amendments in the name of the noble Baroness, Lady Chapman, to withdraw them.

Prisoners: Imprisonment for Public Protection Sentences

Baroness Jones of Moulsecoomb Excerpts

Tuesday 8th March 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I think the link between humanity and effectiveness might lie beyond a short answer to a question. What I can say is that quick fixes—such as retrospectively abolishing the IPP sentence or resentencing IPP offenders—would expose the public to unacceptable risk. We have to recognise that people were given IPP sentences because they were considered dangerous. Having said that, we are working towards making sure that all prisoners subject to an IPP sentence are properly reviewed and their sentences are progressed.

[Baroness Jones of Moulsecoomb (GP)]

One cannot exactly call this a quick fix. The review was announced by the then Prime Minister in July 2011 and has taken until now—nearly 11 years. Why has it taken so long to even start to get to the point where we are righting this egregious injustice?

[Lord Wolfson of Tredegar (Con)]

My Lords, “egregious injustice” is probably the right phrase. What came out in the debates on the police Bill was a recognition by those who proposed the IPP sentence in the first place that it was a mistake. I do not want to look back. We have made the first moves towards a proper automatic referral system. We will be publishing the action plan once we get the response of the Justice Committee. I hope that across the House we can work together to resolve this issue.

Judicial Review and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Lord Pannick (CB)]

Perhaps I might raise a point with the Minister. As I understand the scheme of Clause 3, this automatic online conviction procedure is going to apply only to those offences which are set out in regulations made by the Lord Chancellor, as in new Section 16H(3). The Lord Chancellor has a discretion as to which offences are here relevant. That is by contrast with the provisions set out in Chapter 2 for online procedures generally in relation to civil proceedings, where under Clause 21 the Lord Chancellor may make regulations determining which proceedings the online procedure applies to. But under Clause 21(6) he or she may make regulations only with the concurrence of the Lord Chief Justice, or the Senior President of Tribunals.

Noble Lords in this Committee may recall—certainly the noble Lord, Lord Beith, will recall—that this was the consequence of amendments which we tabled as a result of a report from the Constitution Committee which stated that it was appropriate for the Lord Chancellor, in the civil context only, to provide for particular matters to be subject to the online procedure if there was the concurrence of the Lord Chief Justice. My question to the Minister is whether it would not be more appropriate in this criminal context, in order to provide added protection for individuals for the sorts of reasons indicated by the noble Lord, Lord Marks, if the Lord Chancellor was required to have the concurrence of the Lord Chief Justice before specifying the appropriate criminal offences. I say that with the understanding that we are talking only about summary offences, as in new Section 16H(4). Nevertheless, it may be more appropriate to require the concurrence of the Lord Chief Justice.

[Baroness Jones of Moulsecoomb (GP)]

I am struggling to remember as far back as Second Reading of this Bill, but I did say at the time that Clause 3 was designed to save money in the courts system, and that the main savings would arise from people who pleaded guilty but who should have pleaded not guilty. The risk is so obvious that I am surprised that there are no safeguards or legal protections included in Clause 3. People need to have legal advice; they need to know whether they have a valid legal defence prior to deciding whether to plead guilty or not guilty. Whether someone has a legal defence is not obvious or straightforward; if it were, we would not have lawyers and judges—including lawyers of the huge talent that we have here in your Lordships’ House. The mishandling of all those Covid prosecutions shows how badly the system can get it wrong when things are not clear: there were thousands of wrongly issued fines and wrongful convictions by magistrates.

Defendants need independent, quality legal advice prior to deciding their plea, and the lack of any such safeguards in Clause 3 makes me wonder how it has got so far without this problem being exposed by the Minister, because the risks are even greater for vulnerable groups, such as those with learning disabilities. The pressure of avoiding going to court might make pleading guilty online feel like the safer option, and the cost of getting a lawyer might make the online guilty plea seem like the best option. There is nothing in these proposals to ensure that vulnerable people are supported in making informed decisions. So the potential for disaster is huge, and there should at the very least be signposting by the Government to independent legal advice, screening for vulnerabilities, and checking whether people are eligible for legal aid. I ask the Minister whether the Government are going to bring amendments along these lines on Report. It is potentially a sensible idea, but I would like to see it work well for defendants, and for that there will have to be some changes.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the final sentence of the noble Baroness, Lady Jones. We all want to see this system work well, and we all want to see adequate safeguards. It seems to me that the safeguards may be built into the regulations, but of course we can build in further regulations and safeguards through the process we are going through now. We are not hostile to these procedures as such; we are just concerned that proper safeguards are built in, either through primary legislation or the regulations.

The noble Lord, Lord Marks, set out fully the broad gamut of issues relating to these types of online convictions, where people plead guilty and receive a computer-generated sentence based on certain summary, non-imprisonable and relatively minor offences. All noble Lords who have spoken raised the point about the ramifications of people making guilty pleas because it seems easier to just get it out of the way, and that the possible consequences of having that criminal conviction, even though it is a non-recordable conviction, are not readily known.

I spoke about this point when I had a meeting with the Minister last week. The wording in the Bill is “recordable offences” and I made the point that there are plenty of offences which are recorded, but they are not recordable in the sense of going on the Police National Computer. For example, when I sit in court as a magistrate and deal with people who have non-recordable offences such as evading train fares, the information is available to me that they have previous convictions for avoiding train fares. I am aware of that information, even though it is not a recordable offence, and that will obviously have an impact on the sentence I give to the person who has not paid their train fare for a second or third time. So there is a distinction between offences which are recorded and offences which are recordable.

I will briefly run through the amendments in my name. As the noble Lord, Lord Marks, said, they are trying to mitigate the possible problems with this approach, to which all noble Lords have spoken. Amendment 26 would require all accused persons considered for automatic online convictions to be subject to a health assessment and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online. Under Amendment 27, the automatic online conviction option would be available only if the prosecutor is satisfied that the accused has engaged a legal representative. Amendment 28 would exclude any recordable offences from the automatic online conviction option. Amendment 29 would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18 years old.

As the noble Lord, Lord Marks, said, those four amendments in my name attempt at this point to probe the Government’s response to the potential pitfalls of this approach, to put in adequate safeguards for vulnerable people and children and to make sure that people do not plead guilty out of a sense of convenience. I was particularly taken by the argument used by the noble Lord about ensuring that, when people plead guilty, they know the full ramifications of the possible costs of their guilty plea. As he said, there is the cost of the fine itself, the cost of the prosecution and the cost of the victim surcharge, and all those numbers add up. When one sits as a magistrate, one has discretion over the fine and the costs but no discretion over the victim surcharge, so it is not a straightforward calculation. Depending on the means of the person one is dealing with, one would make a suitable adjustment.

After one has put the fine in place, one puts in place a collection order. This is where you give a specific and direct warning to the person you have just fined that, if they do not pay the money, there is a power for debt collectors or bailiffs to come to their house to collect goods to the same value. I go on and warn them that that makes things more expensive because the bailiffs also charge their costs. So there is quite a bit of procedure that one can adjust when one is sentencing, according to the nature and means of the person in front of you. The noble Lord, Lord Marks, asked a good question: how will this online procedure have the flexibility that the in-court procedure has to make sure that a fair disposal is reached?

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

I do not want to repeat anything that the noble Baroness, Lady Chakrabarti, said in her moving contribution earlier, nor anything said by the noble Lord, Lord Thomas of Gresford, but perhaps I can remind the Minister that we are talking about people who do not have much money and are often in the worst position of their lives, in that they have lost somebody whom they loved very deeply. They are not at a point in their lives where they can cope with the sort of the pressure that the Government are making happen to them. Honestly, the Government are so penny-pinching when it comes to things like this—and student education; indeed, any number of other things—yet they do not make multi- nationals pay their taxes. I do not understand why we ever think that Conservatives are good at running the economy; I think that they are rubbish.

Every death in custody, of any sort, means that a family is bereaved. They may therefore not be thinking clearly and may be extremely upset. For them, the injustice is perpetuated and they are re-victimised because the inquest system is unable to give them the sort of justice they need. Without equality of arms against state parties, effective justice is extremely difficult to achieve. These issues come up time and again; the arguments are well rehearsed. The Government have access to unlimited public funds to instruct the very best lawyers, while the bereaved must navigate complicated legal aid applications in the vague hope that they might be awarded a scrap of money towards their legal costs. It just sounds so mean. It is absolutely mean of the Government. Far too often, the outcome is that inquests and inquiries are seen to have resulted in a damage limitation exercise—an exercise in saving reputations and finding excuses.

I had a grandfather who was killed in the Senghenydd mining disaster. Some 440 men and boys were killed in 1913. The mine owners were brought to court on various issues and paid a total of five and a half pence for every life lost in the mine. This debate reminds me of that: we just do not understand the sort of pressure that we put on people when we do not allow them the legal means to achieve what they need to achieve. It is a bit like the Sue Gray report. Everybody is told that they have to wait until the inquiry is finished but there is another excuse and another delay until, possibly years later, the authorities and everyone have simply forgotten about it.

Here, of course, we all want justice to be done. We all want life to be fair—that is why I am in politics, anyway—but these proposals are not fair. I really hope that the Minister will meet Inquest members because they can give him a first-hand understanding of the pressure and pain that families experience. Justice will not be seen to be done until families are given automatic, non-means-tested legal aid on a footing equivalent to that provided to state parties.

[Lord Hacking (Lab)]

My Lords, if noble Lords will permit me, I would like to make a short intervention. I have not taken part at all in the debates on Part 2 because I wanted to find my feet more in this House. I do so as a member of the council of Justice and, until recently, president of the Civil Court Users Association. I certainly intend to get further involved on Part 2 when we get to Report.

To go back to what the noble Lord, Lord Thomas of Gresford, said, in the mists of time I was called to the Bar in 1963, and in the 1960s and 1970s, legal aid was one of the most socially important provisions that the Labour Government of 1945-51 had brought in. The other one, of course, was the National Health Service and it has been treading backwards ever since that Labour Government went out of power. It is very sad. I remember sitting on a lot of legal aid cases. The problem with legal aid cases was not the lack of spread of legal aid; it was the slowness of the fees coming in. Sometimes they took 18 months or two years to come in, but they did come in and they were very highly supportive of those involved in legal aid. As we see now, particularly in our discussions of coroners, legal aid is no longer supplying the social need that it set out to do, successfully, in 1945. It gets ever more depressing that there is not further support or further money available to support legal aid now, in our present age of the 2020s.

Judicial Review and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

The time has now come for our consideration of that: it is in this very Bill. I continue to urge your Lordships to accept that we need the degree of flexibility that Clause 1 provides.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I love these debates with our legal eagles, especially when they disagree. My only reminiscence of a court was when I was in the dock for not paying my poll tax. Being a very respectable housewife, having made a statement, obviously I paid.

I am feeling a little generous toward the Government —perhaps that is just the effect of recess—so I will accept that there could be situations where a court might usefully add constraints to a quashing order that either delay its effect or limit its retrospective effect. However, the way in which the Government have done this in the drafting of Clause 1 is far too prescriptive. Rather than giving courts these options as tools to deploy in the interests of justice and good government, the Government are trying to force them into being the default position.

Obviously, my legal knowledge is zero, but I will try to inject a little politics into all this, because the reason that the Government are bringing this is, as the noble Lord, Lord Paddick, said earlier, that they are trying to stop their own mistakes. It is already difficult for people to bring judicial reviews. They must be brought as soon as possible and within three months of the decision being complained of. This new scheme in Clause 1 would mean that for many judicial review cases, even if a claimant wins, they lose. That does not make any sense.

The Government have approached the whole issue by seeing judicial review as an enemy to good governance rather than as a fundamental part of enforcing good government. Judicial review is a fundamental part of the checks and balances of the UK’s messy constitution, and the idea that public decisions which are either unlawful, irrational, or procedurally unfair should be left to stand is anathema to good governance. If the Government want to lose fewer judicial reviews, they should simply make better decisions. I know that is not easy for them. I have a lot of sympathy, but they are making a mess. If their decisions are lawful, rational, and procedurally fair, then the Government will not lose. That seems obvious to me. They should not be asking Parliament and the courts to validate their unlawful decisions. To do so is to unpick the rule of law and the delicate system of checks and balances, and now the Government seem absolutely determined to push the UK constitution to breaking point.

Of course, the Green Party’s view is that we should have a constitutional convention and produce a clear written constitution which can be understood by everyone. However, until then, we will oppose the Government’s attempt to stop exposure of their bad decisions. I do not understand why this has been put in when it is so clearly an effort by an elected dictatorship to shut people up.

[Lord Faulks (Non-Afl)]

My Lords, I have the disadvantage of being a lawyer, an interest which I declare, and I was the chairman of the Independent Review of Administrative Law. Our task, as we saw it, was to review whether the balance of our constitution was fairly reflected in particular by the scope of judicial review. We did not make radical suggestions, but one suggestion that we did make—and it was simply a suggestion—was that legislation on what remedies would be available in response to a successful application for judicial review would be required if the courts are to have the option of awarding a suspended quashing order, as the possibility of issuing a suspended quashing order in a judicial review case was ruled out by the UK Supreme Court in Ahmed—and of course, there was one noted dissension, from whom we have heard this afternoon, the noble and learned Lord, Lord Hope.

That was our suggestion. We were not prescriptive as to how best that power should be given to the courts, but what seemed important to us was that there should be some flexibility to stop some of the hard edges which can arise with a quashing order. What seems fundamental to the way the Government have framed this clause is the use of “may” on more than one occasion. The judge, when he or she looks at the act which is being impugned, has the power to do various things and to take into account the sort of things that a judge would probably take into account anyway. We suggested that that flexibility would help do justice to claimants and to defendants, and one should not lose sight of either party in these claims. We have heard the relevant quotation from the judgment of Lord Justice Schiemann on how third parties can be affected by these orders—people order their affairs—but, equally, I accept that it is very important that claimants should not have their remedies in any way frustrated by judges taking an overprescriptive view.

In one of the amendments put forward by the noble Lord, Lord Ponsonby, on behalf on the Labour Party, he is concerned, I think, about potential convictions based on something that might be regarded—retrospectively, at least—as invalid. We considered this in the report, and said the following on page 75:

“in the case where a claimant who brings a civil case against a public defendant, and the public defendant seeks to justify its conduct by reference to some rule or decision under which it operated, the ‘metaphysic of nullity’,

referred to by the noble and learned Lord, Lord Brown, at Second Reading,

“allows the claimant to argue that that rule or decision was null and void and cannot provide a defence to his or her claim.”

We were not concerned about this because, as stated in paragraph 3.67, the

“possibility of such collateral challenges could easily be retained under the more flexible approach to the consequences of unlawful administrative action that we favour. The courts could simply take the position that an administrative rule or decision cannot be relied on as a basis for criminal proceedings, or as a defence in civil proceedings, if it would have been the subject of a quashing order or a declaration of nullity had that rule or decision been the subject of a timely application for judicial review.”

So, I understand the concern; I simply do not think it exists in the way the clause is framed.

I am afraid I simply fail to follow why the noble Baroness says this clause is creating an elected dictatorship. It is giving judges a power to do what is appropriate in the particular case. In some ways, it may allow judges to make quashing orders they might have been reluctant to make before, because of the hard edges of a quashing order. As it is, they have sufficient flexibility to tailor the remedy to what is appropriate in the case in order to reflect the balance between the claimant and the defendant. I am disappointed too that the noble Lord on the Labour Front Bench opposes this clause entirely. Some of the rhetoric about the ability or desire to constrain judicial review did not seem to be reflected at all in the way this Bill is framed.

Governments of all colours, from time to time, to some extent resent judicial review. For example, we looked at a great many comments by the Labour Government—even that of the noble Lord, Lord Blunkett, who is no longer in his place—about the inappropriate comments by judges and restrictions on the ability of the Government to govern. There is the example of the Human Rights Act preventing the Government—so they said—from doing what they needed to do to deal with the threat of terrorism. All Governments from time to time find this irksome. Simply to oppose a provision in a Bill because it has the subject of judicial review does not seem to me to be a very scrupulous and sensible way to approach legislation.

[Baroness Jones of Moulsecoomb (GP)]

Before the noble Lord sits down, may I correct him? I did not say that this clause suggested an elected dictatorship. I am saying that an elected dictatorship is running the country at the moment, and we see that in every single Bill that comes to this House.

[Lord Faulks (Non-Afl)]

I am grateful for that clarification, but I am afraid to say that I still fail to follow how bringing forward a fairly balanced Bill is somehow the Government reflecting an elected dictatorship. But I hear what the noble Baroness says.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

I do not see this as a tool in the toolbox but as opening up a nest of snakes. When you use the phrase

“unless it sees good reason not to do so”,

it opens up some real complexity if people start to make further appeals on the basis that there was good reason not to do so or good reason to do so. I do not see that this is any sort of simplification. The Government will probably regret opening this system of quashing because it will add complications when the Government presumably want it to run more smoothly. I cannot see that there is any point to this. I hope that all those legal eagles over there will start circling round our little legal lamb here and explain to him that he has got this completely wrong.

[Lord Falconer of Thoroton (Lab)]

These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),

“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,

and the condition is that

“as a matter of substance”

an order under new subsection (1) would

“offer adequate redress in relation to the relevant defect”.

Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?

My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”.

If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to

“the interests or expectations of persons who have relied on the impugned act”.

Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).

I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.

--- Later in debate ---

Under the present procedures, these applications are restricted and clamped down. It is quite wrong, in the Government’s approach to this issue, to cut out further the rights of these appeals, as well as being unnecessary, because the proper defence is already there.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I do not have enough experience to talk about this first hand, but I get a lot of very useful briefings from campaign groups. On Clause 2, Liberty summed up the arguments extremely compellingly. I shall not read out the whole paragraph, but I shall read out three sentences.

“Cart judicial reviews are only given permission to proceed where there is ‘an arguable case, which has a reasonable prospect of success”


—that seems perfectly reasonable. Cart reviews

“allow egregious injustices and errors to be caught not just to the benefit of the individual claimant, but the benefit of the system as a whole.”

As the noble and learned Lord, Lord Phillips, put it in the Cart judgment itself, they

“guard against the risk that errors of law of real significance slip through the system”.

I cannot really see any proper way forward than removing Clause 2 in its entirety.

Nationality and Borders Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Baroness Stroud (Con)]

My Lords, I too support Amendment 100, in the name of my noble friend Lord Kirkhope, to which I have been pleased to add my name. I refer to my entry in the register of Members’ interests.

The question of offshore detention is undoubtedly one of the most controversial aspects of this Bill, which is designed to stem the flow of small boats from France. The stated objective of this policy is one of deterrence, but opponents of the policy have rightly been asking: at what cost?

Before we look at the issue of offshoring, I will take a moment to look at and think about the sorts of journeys taken by those fleeing violence and war. Asylum seekers are frequently exposed to intolerable levels of risk as they travel. Irregular migrants face dangerous journeys: they are unprotected, they accumulate debt, and they have no legal recourse. The limited opportunities for legal migration force individuals to use people smugglers where there is a risk of being trafficked. Asylum seekers who fall prey to human traffickers can be exploited in both transit and destination countries. During the asylum seeker’s journey, the fine line with human trafficking—the acquisition of people by force, fraud or deception with the aim of exploiting them—can be easily crossed.

Just imagine you go through all that and end up on these shores. It has taken your savings and months of your life to arrive here from, say, Afghanistan, Syria or Iran. On arrival on our shores, we greet you and, before we have even assessed whether or not you are a refugee, put you on a plane and take you back to the continent from which you came. That action alone could kill someone, but my question is also: what does that make us?

Before I set out my reason for asking the Home Secretary to think again about the use of offshore detention and processing, whether in Rwanda, Ghana or Ascension Island, as we have heard, I will return to the point I made last Tuesday. The best hope of a fair, just and affordable solution to the issue of the Calais boats still lies with a diplomatic solution with the French and EU nations. Will my noble friend the Minister comment on the Telegraph story on Wednesday about the French President’s apparent openness to a deal over channel crossings? As I have suggested a number of times, a returns agreement with the French is likely to be the only viable way to stop the crossings. I imagine this taking the form of an agreement that those who have crossed here irregularly are sent back to be assessed in France; in return, we commit to taking a certain number from Calais. This is a win-win solution that would genuinely destroy the economic model of the people smugglers, would cost less and would be far more humane.

Could my noble friend the Minister also provide an estimate of the cost of offshore processing? A cursory glance shows that a room at the Ritz costs between £650 and £700 a night. Extrapolate that and one finds that it costs around £250,000 to stay at the Ritz for a year. The estimates of what the Australians pay for one asylum seeker held in detention vary from that amount to eight times that. How can that be justified?

It is not only the cost that concerns me. Can the Minister provide reassurance that no children will be sent offshore and that women who are vulnerable to sexual violence will receive proper protections? The concerning stories that emerge from processing camps in other countries should give us pause for thought before we embark down this road. When there are other potential diplomatic avenues that the Government are yet to properly consider, offshoring looks like an oversized hammer being used to crack a nut, with the potential for corrupting our character as a nation and our international reputation, and increasing racial tensions domestically and the administrative burden and cost to the state. I urge the Minister to think again and for this House to give the other place an opportunity to think again.

[Baroness Jones of Moulsecoomb (GP)]

Outside on the streets today are people supporting those of us who are fighting this Bill. They understand the damage it does not only to the refugees and people seeking asylum here but to the Government’s reputation. I do wonder. We have to say these things, because our consciences would not let us not say them, but are the Government listening? I rather think not. Essentially, these clauses are about being able to deport refugees while their asylum claim is being processed. That is not fair on the individuals involved and, I would argue, is inhumane. They are simply being herded like cattle and packed off to be trafficked, essentially.

Clause 28 and Schedule 3 make provision for safe countries, but no provision for safe accommodation. We know that the accommodation we provide here in the UK is pretty substandard and, sometimes, outright revolting, so I have no trust that safe countries will do any better than we have. I have a question that I would like answered today: what steps will the Government take to assess the conditions and that these people are being treated well in those safe countries?

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I shall continue to limit my interventions in Committee to expressing views that I hold simply as a lawyer. The course I took on Tuesday of last week, when we were discussing Clause 11, gave us an early introduction to the very provisions with regard to reinterpreting the convention that we are now concerned with. I reserve the right, when we come to Report, to come in on what I regard as the more obviously mean-spirited and ill-judged other provisions, which are, as is patent, designed to deter as many as possible of those who would otherwise wish to seek refugee status in this country.

Clause 29, as has already been pointed out, is an omnibus provision that takes you into further and more specific, and therefore more specifically objectionable, provisions, which take the convention apart and reinterpret it piece by piece. As both noble Baronesses have said, that is itself intrinsically an objectionable way to proceed with regard to one’s legal obligations.

There are three further stand part notices in this group. I will not touch on all of them because time is the enemy today, as it will be on Thursday. On Clause 33, the protection from persecution, as the Bingham Centre for the Rule of Law has valuably pointed out, this clause fundamentally changes the approach to protection from persecution from a focus on meaningful and effective protection against persecution, which our long-established jurisdiction establishes is the correct focus, to a focus on the existence of a reasonable system to prevent, investigate and prosecute instances of where, despite the system, there has been persecution. This refocusing mischievously—and, I suggest, in legal terms, fatally—sidesteps the all-important question of whether the system is likely to protect the individual concerned.

In the interests of time, rather than make comparatively lesser points on the other two named clauses, Clauses 34 and 35, I will pass on. I say only on Clause 35, mentioned by the noble Baroness, Lady Hamwee, that this is directed to Article 1(F) of the convention. Clause 35(2) goes to Article 1(F)(b), concerning serious non-political crimes, and we will come in the next group to Clause 37, which deals with Article 33 of the convention on non-refoulement. Whatever the position on non-refoulement that may be arrived at under the refugee convention, even if, for example, the asylum seeker was found to be a war criminal and so is denied refugee status under Article 1(F)(a) of the convention—see Clause 35(1) of the Bill—it still is not possible to return that person to their country of origin if they would be persecuted. That is simply precluded by Article 3 of the ECHR.

I have had a helpful exchange of emails with the Bill manager. I asked the Minister at our Cross-Bench meeting a question which he referred to the Bill manager; namely, whether any of these provisions in the Bill were intended or calculated to alter any of the well-established and authoritative case law in this country. Except for one point which the Bill manager made regarding Clause 37, which corrects an ambiguity that arose under Section 72 of the 2002 Act, I am unpersuaded that where there is a departure from our case law, as is recognised, it is properly made under this Bill. I finish at this point.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have been here for only eight years, which is not long in your Lordships’ House, but I have never seen so many attempts to delete clauses from a Bill—and of course that is completely the right thing to do here. With this Government, I always look for dead cats being thrown on the table to distract us from something much worse that is happening under the table, but there are so many dead cats in this Bill that I am assuming they are all genuine bits of the Bill that the Government want to pass, which is quite disturbing.

Here the Government are trying to unilaterally rewrite international law, and they are doing so to appease the far right, both in their party and in the country. That is a pointless thing to do; you will never appease the far right. It is an example of the Government throwing away decades of international progress on domestic and international policies only to appease a segment of society who are outspoken and noisy—like the Greens, I suppose, but, unlike the Greens, they actually have malign intent.

We are sending a signal to the world that we are not competent to run our country any more, and certainly not worthy of being part of any international grouping that believes in progress and the rights of the human being.

[Lord Alton of Liverpool (CB)]

My Lords, I add my voice to those of the noble Baroness, Lady Jones, my noble and learned friend Lord Brown of Eaton-under-Heywood, and the noble Baronesses, Lady Hamwee and Lady Chakrabarti, in saying to the Minister, for whom I have considerable respect—I know of his own track record in the area of international law and the upholding of human rights—that beyond the legal arguments that have already been put to him is the reputational damage to this country, not least because of international issues, some of which he will be aware of.

Anything that we do to dilute our commitment to the 1951 convention on the treatment of refugees—any unravelling or unscrambling of our commitments—is to be deplored. I will give two examples to the Minister. I co-chair the All-Party Parliamentary Group on North Korea and am vice-chair of the All-Party Parliamentary Group on Uyghurs. In the case of North Korea, we, the United Kingdom, will regularly raise with the People’s Republic of China the refoulement policy of sending North Koreans from the PRC, to which they have escaped, back to North Korea, knowing that terrible things, including executions, will happen to them when they are sent back—a clear dereliction of the commitment to which the PRC signed up in the 1951 convention on the treatment of refugees.

In the case of Uighurs, Turkey is presently considering sending back Uighurs because of an agreement that it has reached with the People’s Republic of China. Everyone in your Lordships’ House—notably the noble Lord, Lord Anderson of Ipswich, who is in his place; he raised this issue with me as recently as last week, in another debate—is well aware that there are 1 million Uighurs in detention centres and camps in Xinjiang, and we know of terrible atrocities that have occurred. Our own Foreign Secretary has said that a genocide is under way. In that context, for any country, and in the case of Turkey a NATO country, to be sending people back, again in violation of its duties in the 1951 convention, seems to be deplorable. However, the United Kingdom can hardly start lecturing others not to do these things if we ourselves are going to unscramble and diminish the importance of the 1951 convention.

I suppose that, as a post-war baby, I have maybe too much admiration for what was not entirely a golden age, but think about all the things that were put in place at that time: everything from the Marshall aid programme to the 1948 Universal Declaration on Human Rights, with its 30 articles that set out our rights on an international basis, and the 1948 convention on the crime of genocide. Given all those things that have been put in place, we should think extraordinarily carefully before we do anything to diminish or dilute them. That is why I hope the Minister will give proper consideration to the interventions that he has heard so far—I am sure he will—and, between now and Report, see what more we can do to ensure that we do nothing to diminish the importance of the 1951 convention.

--- Later in debate ---

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

My Lords, I am grateful to all noble Lords who have taken part in this debate.

The starting point is that we are no longer members of the European Union and, by extension, the Common European Asylum System. In response to the point made by the noble Baroness, Lady Hamwee, these provisions are not a direct response to the case of AH (Algeria). They are about having an opportunity to define clearly and unscramble refugee convention terms following our exit from the EU. It is right that, at this time of legal change, we take the opportunity to reassess the operation of our asylum system and reconsider our approach not only to fundamental policies but to processes, so that we can create a clearer and more accessible system.

The fact is that the development of the asylum system through international conventions, European law, domestic legislation, Immigration Rules and case law has created a complex legal web that can be difficult to understand and apply; that goes for claimants, decision-makers and the courts. I do not propose to use props—I understand that that is not permitted—but, for my own assistance on a later group, I brought a book called, rather laughingly, The Immigration Law Handbook. We consider it a desirable law reform to define clearly key elements of the refugee convention in UK domestic law. In response to my noble friend Lord Hodgson of Astley Abbotts, that is exactly what we are doing. We want to make the position clearer for everyone, including decision-makers and the courts.

A lot has been said that touches on the same point but, with great respect, the noble Baroness, Lady Chakrabarti, perhaps put it most forcefully. She used a number of metaphors. Let me respond to them. This is not about tripping anybody up. It is not a sleight of hand; it is difficult to do one of those on the Floor of your Lordships’ House. This is about bringing clear definitions before Parliament and having them all in one place. The central point is this: there is nothing wrong—indeed, I suggest that there is everything right—with the UK, through this Parliament, interpreting its obligations under the refugee convention. That is entirely lawful. I use “lawful” in both its narrow and wide senses. It is lawful in the sense that it is in accordance with the law; it is also lawful in the broader sense of being in accordance with the political or constitutional principle that we call the rule of law. Further, it is in accordance with the Vienna convention. Everything we are doing complies fully with all our international obligations, including the refugee convention and the European Convention on Human Rights. I will come back to the question that the noble Baroness asked me in that regard a little later.

With respect to the noble Baroness, Lady Hamwee, it is not perverse to use domestic legislation to give effect to and interpret international treaties. I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of appeasing the far right; nor am I in the business of deleting obligations under international law. Many of the definitions, which repay careful reading, are very similar to those already used in the UK—for example, those contained in the 2004 qualification directive, which was transposed into UK law via the 2006 regulations.

I am grateful to the noble Lord, Lord Alton, for his kind words. I assure him that I of course give proper consideration to international reputational impacts, but surely there can be no adverse impact by complying with international law and interpreting treaties in accordance with the Vienna convention.

[Baroness Jones of Moulsecoomb (GP)]

I am sorry, I missed my moment; I should have spoken as soon as the Minister spoke to me. I did not accuse him of trying to appease the far right. I hope I did not say that—I certainly did not mean to—but I do accuse the Government of it. I know that the Minister did not write this Bill, but that is something I see the Government as guilty of.

[Lord Wolfson of Tredegar (Con)]

I did not take it personally. I agree that I did not write the Bill. It would be a far worse Bill, and the noble Baroness would like it even less, if I had written it. But I replied in that way because I take the view that if I am standing here defending government policy, then I will stand here and defend government policy. I certainly would not defend a government policy which was simply appeasing the far right. So, that is why I replied in those terms. I know that the noble Baroness was not making a personal attack; I did not take it that way.

To finish my point to the noble Lord, Lord Alton—

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

I will address Clause 36 very briefly, which I discussed last week in the context of Clause 11. I confine myself today to asking two questions.

First, do the Government accept, as I suggest they must, that Clause 36 would overrule the judgments of Lord Bingham and, among others, the noble and learned Lord, Lord Hope of Craighead, in Asfaw, fully affirming what had been said on the relevant issues in the judgment I gave in the Divisional Court in Adimi? This has all been elaborated on today by my noble and learned friend, Lord Etherton.

Secondly, if so, are the Government overturning Asfaw and Adimi because, disinterestedly, they genuinely think those decisions are clearly wrong—or because they think an alternative and more anti-asylum seeker interpretation may arguably be available to them?

[Baroness Jones of Moulsecoomb (GP)]

The idea of people being able to arrive here without going through a third country has been debated before in the course of this Bill—I cannot remember whether it was last week or another time. When we queried how people could get here, the Minister explained that they could come by aeroplane. That might be possible for some, but it is not possible for everyone who might need to be here in Britain rather than somewhere in Germany or France. Perhaps the Minister could give us a better explanation about how people get here, if there are not enough safe routes or aeroplanes.

To me, this is a naked attempt to stop refugees. I do not understand why the Government cannot see this as well. We are taking advantage of our geography and saying, “We’re too far away, you can’t come”. This is ridiculous. As I have pointed out before, we have a moral duty to many of these people. We have disrupted their politics, their climate and their lives—therefore, we owe them. It is not as simple as saying that they want to join their mates.

This Bill should be setting out safe routes and establishing ways to get people to the UK safely and legally. At the moment, we do not have that because the Government are pulling up the drawbridge.

[Lord Green of Deddington (CB)]

My Lords, in a word, I see these issues from a policy point of view, not just a legal one. The fact is that our asylum system is in chaos, and very visibly so. Large numbers of claimants are turning up on our beaches. The Government are seeking to tighten the asylum system. That does not seem to be unreasonable, and I very much agree with the noble Lord, Lord Hodgson.

--- Later in debate ---

[Lord Hylton (CB)]

My Lords, I have added my name to three amendments in this group. I note that they are all new clauses. New clauses are necessary to improve this Bill, and they are essential to humanising our present systems, let alone what may emerge from the Bill once it becomes an Act.

Reuniting families split by wars and persecution brings huge benefits; I think we can all agree on that. Amendment 112 enfranchises both children and their parents. It also empowers the Secretary of State to add new kinds of relationships. Amendment 113 should, as the noble Baroness, Lady Ludford, has just mentioned, reduce dangerous crossings of the channel.

On Amendment 114, we all know that the neighbours of Syria and Iraq have been subjected to and have accepted huge influxes of people. The same is also true of southern European states. For these reasons, there is an urgent need for equitable burden sharing. This, in turn, will require much greater international co-operation. We can do our part in this country by using family reunion. Our neighbours and allies are entitled to know what our intentions and proposals are in this respect.

The wording of all three amendments can, I expect, be improved. Will the Government accept at least their principles, take them away and bring them back in pristine condition?

[Baroness Jones of Moulsecoomb (GP)]

Going through the amendments this morning in preparation for this evening, I got quite tearful when I read these amendments because my family is incredibly important to me—every single one of them. I love them and I do not want to lose them or break up in any way from them. The thought that we in Britain could be the cause of families separating made me very upset.

I have signed two of these amendments, but they are all good amendments. The Government really ought to look into their own hearts and think about how they would feel if their families were broken up, through no fault of their own, because of despotic powers or other reasons. It is time to be a little bit kinder in this Bill, so please will the Government accept these amendments?

[The Lord Bishop of Durham]

My Lords, I specifically support Amendment 117, to which I have added my name, but I support all these amendments around family reunion. I declare my interests in the register around RAMP and Reset as before.

Acknowledging that when people are forcibly displaced they end up in different places, often having lost family members, UNHCR research has shown that families often set out together but become separated along the way. Reconnecting those families, or, where some family members are lost, reconnecting people with other relatives, really matters. In seeking protection, those seeking asylum want to do so alongside the family that they have. This is better for individuals—their well-being and their future prospects—and for the community as a whole. It is therefore also better for social integration.

In my conversations with refugees and people seeking asylum, the whereabouts and safety of family is generally the number one preoccupation that they raise. This concern overrides everything. When we speak about family, it is not purely spouses and children but aunts, uncles, cousins, nephews and nieces. Organisations working with refugees, such as Safe Passage, know from their work that, when people have no safe route to reach their families, they are more likely to risk their lives on dangerous journeys to reach loved ones. Many of these individuals are children and young people seeking to reunite, often with their closest surviving relatives.

No doubt the Minister will give us the numbers again of how many families have been reunited under it, but existing refugee family reunion is narrow in scope. The threshold to be met under paragraphs 297 and 319X of the Immigration Rules for an adult non-parent to reunite with a child is “serious and compelling circumstances”, which is extremely difficult to meet in practice.

I appreciate that we cannot offer protection to all extended family members, but we can do this for some out of kindness, and it would divert them from using criminal gangs. Once they arrived in the UK, they would enter the asylum system to have their claim for protection decided.

Of course, we would prefer people not to have to make the dangerous journeys as far as Europe, and I expect that the Minister will cite pull factors to Europe as a rebuttal. With an ambitious resettlement scheme—which we will come back to—a broader definition for family reunion, as well as an increasing commitment to aid and constructive engagement with our near neighbours, I believe that any such pull factor to one safe route will be mitigated. The alternative is that people come anyway but in an unplanned way, risking their lives and causing further trauma.

I urge the Minister to at last give way on one item: consider this proposal as a pragmatic response to the need to find durable solutions for desperate people dying on our borders in order to reach their family.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I am sure this was not at the top of his list, but the noble Lord, Lord Alton, has reminded us of the role of the arts in this area. Artists, playwrights and others could express better than the rest of us what they feel, and audiences could perhaps get a wider and deeper understanding of the issues involved. The area of arts and culture is hugely important in this.

Earlier this evening the noble Lord, Lord Wolfson, said that we will continue to grant humanitarian protection, and Amendment 118 seeks to extend that to a humanitarian visa. I will explain it as quickly as I can, because what is most important is that we hear what the Minister has to say. If it is a “Sorry, no”, we need to understand why. I express my gratitude to Garden Court Chambers for drafting this amendment, which spells out the requirements and the process.

The amendment seeks to provide an exceptional route by which a person abroad—not in this country—can obtain a visa to come to the UK to seek asylum. At the moment, it is generally not possible to claim asylum in the UK unless one is already here. This visa could be applied for from anywhere in the world. The person would have to show that, if made in the UK, the claim

“would have a realistic prospect of success”,

and also that

“there are serious and compelling reasons why”

it should be considered in the UK. In assessing that, the entry clearance officer would take into account the extent of the risk of persecution or serious harm—persecution having the meaning that it has in the UN refugee convention, and serious harm meaning treatment that, if it occurred in the UK, would be contrary to Article 2, the right to life, or Article 3, the prohibition of torture and inhuman or degrading treatment or punishment, of the European Convention on Human Rights.

If a humanitarian visa is granted, the person will be granted a visa—I stress that—of at least six months’ duration. The Home Secretary could set conditions such as restricting access to work. On coming to the UK, the person will be deemed to have made an asylum claim and will go through the normal asylum process like any other asylum seeker, so the normal processes would not be sidestepped. There would be a full right of appeal, which is Amendment 119.

I have written down the words “Controlled and organised process”. Those working in the sector have long advocated humanitarian visas, which would be one of a suite of safe and legal routes. The humanitarian visa route would not be something that many could take advantage of, but it is significant and structured.

I will leave that there; as I say, the Minister’s response is more important tonight. However, on Amendment 119A, I will say that I was not surprised to see it. The noble Baroness, Lady Kennedy, never misses an opportunity to buttonhole someone who might assist the women judges, other lawyers and others in Afghanistan. What she is seeking is only temporary, in the same way as a humanitarian visa would be. It is one thing to get people out of the country when they are at risk—she has had the most extraordinary success—but it is another to find somewhere for them to go.

[Baroness Jones of Moulsecoomb (GP)]

I will not repeat myself—well, I am going to repeat myself just briefly. If the Government saw refugees as human beings, they would already have written these amendments into the Bill. We are pushing at a closed door at the moment. We should be taking more refugees and creating more safe routes.

I have a word of warning, which is that there will be many climate—ecological—emergencies over the next decade or so and, given that we have contributed a large part of the world’s accumulated CO₂ emissions, we have to understand that we have a moral duty to take our share of climate refugees. It is already happening. There are parts of Africa that are now almost uninhabitable because of climate change, and other places will shortly follow. We have to understand that refugees are not a temporary problem but a permanent problem, and there will be a lot more. If we prepare well and put the programmes and the funding in place, we can cope and do it well. However, while the Government treat refugees as criminals and unwanted people, I am afraid that I see this simply as another reason why the Government have to go.

[Lord Kerr of Kinlochard (CB)]

I think the noble Baroness’s warning is very well taken.

I support Amendments 118, 119A and 119B, but I want particularly to speak in favour of Amendment 116 in the name of the noble Lord, Lord Kirkhope. The noble Lord and I have done business together for a long time—the past is another country, and it was in fact in another country—and it is a pleasure to be supporting his amendment. I should also say that I am very grateful to the Minister for the letter that she wrote to the noble Lord, Lord Dubs, with a number of useful factual points in it. I am very grateful for my copy today.

It seems to me that the amendment raises two questions: why should one set a number, and why 10,000? Why should one set a number? I am a trustee of the Refugee Council and I have spent some time trying to work out why so many of the Afghan refugees who came here last summer are still in temporary bridging accommodation. I have not quite got to the bottom of it, but it seems to me that the problem is not ill will or lack of intention. I do not criticise the Government. It is a problem with local authorities that arises from the squeeze on their budgets and lack of certainty over financing. The attraction of setting a minimum number is the certainty of having a number in the public expenditure survey—a number negotiated with the Treasury. The Treasury would need to ensure that local authorities were equipped with the money to pay for at least that level.

There seems to be no shortage of willingness in local authorities; it is a shortage of funding in local authorities. When you look at the huge number of local authorities—nearly 300—which came in under the Syrian refugee scheme, it seems to me that what is needed is the certainty that enables one to plan ahead for financing and finding accommodation. So I think setting a number is a good idea and I support the noble Lord, Lord Kirkhope, for that reason.

Is 10,000 the right number? There are 28 million refugees in the world; it does not seem a very high number. Canada is taking 35,000 Afghans in this calendar year. The population of Canada is just over half the population of the United Kingdom. Comparing us with Europeans, we are number 21 out of 42—bang in the middle of the pack. With our tradition of a presence around the world, that seems to be quite low.

On the other hand, it is probably more than the hotchpotch of present schemes will bring in. It probably would be an increase, but I cannot say for sure because, as the Minister says in the enclosure to her letter today, rather surprisingly, 11 months in, it is still too soon to produce any statistics on how many people are coming in under the resettlement scheme that started in March last year. We do not know how many we are taking now, so we do not know whether this would be an increase. I suspect it would be, but I suspect that overall refugee numbers coming to this country would drop over time. I think this is the answer to the channel problem; 26,000 people came across the channel last year. If there were safe routes—and here is a safe, reliable route—fewer people would try to come unofficially. Fewer people would get killed trying to come into the country.

So I think that, although the number of official refugees would probably go up if we set a 10,000 minimum, the total number of refugees coming here would probably go down. I cannot prove it but that is my instinct. It seems to me that so strong is the incentive to find safe routes that this is a very good way of going about it, so I support the amendment.

--- Later in debate ---

[Baroness Evans of Bowes Park (Con)]

It is genuinely not the noble Baroness, but we also need to work together —please—to get this Bill through. It is an important Bill. All noble Lords absolutely have the right to say what they want, but we also need to get this through. I am sorry, but can we please focus on that? We will let everyone speak, but please be aware of the time and what everyone else needs to be doing tonight.

[Baroness Jones of Moulsecoomb (GP)]

Why do we need to get the Bill through? Why can we not leave it until after the recess? I do not understand. This is the Government’s problem—they have created this problem for us.

[Baroness Chakrabarti (Lab)]

The intervention was on me—

Judicial Review and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

It is a pleasure to follow the noble Baroness, Lady Chakrabarti, and I agree with everything she said. I am the 17th speaker but only the third woman, which says a lot about our society’s past but, I hope, absolutely nothing about its future. I have no legal training, so the Minister will have to hear me as a voice from the street; actually, that sounds a bit louche: the voice of common sense—of the common people.

A couple of months back, I said that every single Bill the Government brought to this House was worse than the last, but this is an exception. It is not as bad as I expected, so well done to the Government for bringing such a puny Bill that we can probably throw most of it out. The Bill continues the Government’s piecemeal approach to constitutional change: a little bit is tweaked here and a little bit there, but no overview is taken and so nothing coherent comes out.

We need an opportunity to look at how government and power should operate in a modern democratic state—not that we have a modern democratic state, but we really should have one. The proper way forward is obvious: we need a constitutional convention made up of experts and members of the public to determine how and why government should work. Instead of that, we have these scrappy little bits of legislative change.

The Bill is pretty empty. After what the Government said about judicial review, I expected something quite hefty—a big attack on judicial review—but this is really not very serious at all. All we have in this Bill is a new remedy for the High Court to award a weakened form of quashing order, although it is difficult to envisage many circumstances in which a judge might find this to be relevant.

More concerning is the scrapping of the Cart judicial review, of which we have had some wonderful explanations. I have enjoyed it very much; I felt I should be taking notes at various times, but I can read Hansard. Scrapping the Cart judicial review would be a mistake. It is an important legal avenue for people going through the Asylum and Immigration Tribunal. I hope that the opposition can join together on Report to remove Clause 2.

That is it for judicial review; the rest of the Bill is about the courts. Surely this should have been the “courts and judicial review Bill”, because there is so much more on the courts.

The procedural stuff in the Bill is an attempt by the Government to save money in the justice system and to unclog the backlog in the courts, which have been atrociously underfunded. Their budgets have been slashed by this Government, who are now trying to mop up a bad situation that they have caused themselves. It is a win for everybody who believes in the rule of law and checks and balances against executive power, but it is not enough. These procedural changes might help. For example, things such as the written indications of plea might seem to try to take lessons from other places but, quite honestly, if there is not proper investment in staffing all these things, it could easily fail and exclude a lot of people.

It was a pleasure to listen to the noble Lord, Lord Hacking. I assure him that, in spite of our tabling 700 amendments to the police Bill, as soon as it gets back to the Commons the Government will throw them all out. In fact, there are not really many extra laws at all, after all our work.

There are risks of injustice in the Bill. The Minister will not want that, so I am sure he will listen to this House when we point them out.

In summary, these measures might help but are no replacement for proper investment in the justice process. The most likely cost savings will be from people pleading guilty, as the noble Lord, Lord Ponsonby, pointed out, when they should have defended their case. That injustice will be inflicted by this Government.

Contrary to what some in government have made out, lawyers are officers of the court who play an essential role in making the justice system function effectively. Cutting them out with paper proceedings will be like taking a pair of scissors to the whole principle of justice. I have cut my speech massively to fit into five minutes—almost—but I will of course be back in Committee and on Report.

Nationality and Borders Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow my noble friend Lady Chakrabarti. I will be brief. I thank the noble and learned Lord, Lord Etherton, for moving Amendment 68 and associate my name with this amendment. It deals with a glaring omission. I hope the Government will accept the amendment because, as has been rightly said, the Bill states:

“The Secretary of State must declare an asylum claim made by a person who is a national of a member State inadmissible … For the purposes of subsection (4) exceptional circumstances”.


This is where Amendment 68 beautifully sits and deals with that omission because intolerance is on the rise on the grounds of many protected characteristics listed within the Equality Act not only in Hungary, but in Poland and other parts of the EU. Indeed, the EU is somewhat restricted in what it can do with independent member states on some of these issues. I hope that the Minister will indicate that the Government will move on this, and the other positive amendments within this group, because in the end we are dealing with issues of human rights.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am going to make a short speech about how the Government want to have their cake and eat it. One minute the EU is a place where there are lots of freedoms and protections for its citizens, and the next minute it is terribly repressive and we want to get out. Essentially, I support the noble Lord, Lord Dubs.

[Lord Kerr of Kinlochard (CB)]

My Lords, I agree with the noble Baroness, Lady Chakrabarti, but my feeling about these amendments is that that the noble and learned Lord, Lord Etherton, is right and that the best answer is to strike out the clause.

--- Later in debate ---

I promised I would not go on, but I must add my voice to those who express concern about the issue of minimal weight. The clause says that this considers whether a claim can be certified as unfounded or whether further submissions will be accepted, that there is an exception provided, and that there are “good reasons”. Again, I ask the Minister: what are those good reasons? It is unclear how claims from LGBT+ people will be treated. The equality impact assessment talks about mitigation in general terms. However, as I said before, the Home Office does not have a sufficiently positive record on decision-making in these issues.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak to Amendments 83 and 88, which I have co-signed, and Amendment 96, but there are some other superb amendments. I am not a lawyer—I am not going to apologise for that because I have had an interesting life— but I did get a lawyer to look at this for me; not yet a QC, but obviously it is a possibility. Their thoughts were that these evidence notices treat asylum seekers like criminals—in fact, worse than criminals; they treat asylum seekers as if they were dreadful criminals.

In a criminal case, late evidence might be treated as less compelling than if it had been raised earlier on, but evidence is evidence, and if evidence demonstrates a fact, then that is a fact. Facts do not care about your timescales. Rather than allowing a tribunal to determine how much weight to give the evidence, Clause 25 forces them to give minimal weight if the evidence is supposedly late. Even if it were the most compelling evidence, a tribunal would be forced to give it minimal weight. That really cannot be right; it is not justice. I cannot believe the Minister will stand up—in a few moments, we hope—and say that this is justice. This is an artificial exercise. It is not founded in justice. It is a purely political venture to make it harder and harder for people to claim asylum, and to make it easier for them to be deported. It must be stopped.

[Lord Etherton (CB)]

My Lords, I will speak to my Amendments 82, 84, 86, 90, 91 and 96. I would like to start by taking up the point about the so-called principle specified in Clause 25(2) of the Bill

“that minimal weight should be given to the evidence.”

I am not aware of such a principle. Of course, there can be times when time limits are imposed in a court—and perhaps it can be done by statute—for evidence to be delivered, and if it is not delivered by that time it is excluded. But once evidence is before the court, as the Minister will appreciate, it has to be taken into account even if the relevant evidence—it may be documentary evidence—has been obtained improperly, when it should not have been disclosed or it has been disclosed inadvertently. Once the evidence is there, it is taken into account and given such weight as it is due. We do not have a principle in this country, so far as I am aware, of simply saying that if evidence is late we are not going to have regard to it. That seems to be a denial of justice. I certainly support all those who have spoken against that so-called principle.

I thank the noble Lord, Lord Coaker, for his introduction to the difficulties faced by minority groups, particularly LGBTQI groups, in relation to the giving of evidence. In deciding whether there is good cause for late evidence, or for failure to comply in a timely manner with a priority removal notice and so on, all my amendments—apart from one—put forward that there be, on the face of the Bill, a provision so that the difficulties and particular situations of people who have a protected innate or immutable characteristic must be taken into account. I went into this, your Lordships will remember, on Tuesday in relation to Clause 11, and there is no need for me to repeat it. It has been put very well by the noble Lords, Lord Coaker and Lord Cashman.

Apart from all the difficulties of having discreet, secret lives—particularly in the case of the LGBTQI community—and therefore perhaps not having any evidence as such, seeking information when it is required, and corroboration, from people back in the country from which asylum seekers come poses great difficulties. An asylum seeker will not want to implicate his or her family or friends, because they could suffer as a result. There are all sorts of adverse consequences as a result of conduct that is disapproved of in the many countries that proscribe sex between same-sex couples. There is a combination of a whole variety of things, in addition to all those other points made by people about the difficulty of coming to terms with one’s sexuality.

The same applies for single women. They have many similar problems: the shame of having left an abusive relationship, the shame on the family, the consequences for the family, the clandestine nature necessarily required for those women to come here—and then they may face a male authoritative figure. All these grave difficulties have to be taken into account.

I explained why this ought to be on the face of the Bill, despite the fact that the noble Baroness the Minister said it would all be dealt with in guidance, because, as the noble Lord, Lord Cashman, said, the record of the Home Office in relation to this is not good. I gave the statistics on Clause 11 earlier this week. In 2018, 29% of LGBTQI applicants were permitted asylum, but on appeal, taking the average from 2015 to 2018, nearly 40% of the appeals succeeded. That reality reflects the grave difficulties and the disbelief faced by these desperate people. That is why noble Lords will see in those amendments—apart from one; I will come to Amendment 91—that they are all to do with putting on the face of the Bill the need to take into account, wherever there is a reference to reasonable cause or what is practicable, the particular protected characteristic of the asylum seeker.

The one that is different is Amendment 91, which is one of the two amendments I have to Clause 22. Clause 22 provides for a new Section 82A to be inserted into the Nationality, Immigration and Asylum Act 2002 and provides for “Expedited appeal to Upper Tribunal in certain cases”. For there to be an expedited appeal, the Secretary of State has to

“certify P’s right of appeal”—

that is, the person served with the priority removal notice—as being appropriate

“unless satisfied that there were good reasons for P making the claim on or after the PRN cut-off date (and P’s right of appeal may not be certified if the Secretary of State is satisfied that there were good reasons)”.

What is important is that, whatever the Secretary of State has to be satisfied about, they should be reasonably satisfied. My amendment is to impose a requirement that the Secretary of State can certify the right of appeal under this clause only if satisfied on reasonable grounds, so that there is some principle that can be examined in the light of the particular facts of the case.

Social Welfare Law Cases: Legal Aid

Baroness Jones of Moulsecoomb Excerpts

Tuesday 1st February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, the pilot that I was referring to is a general pilot in relation to social and welfare entitlements. Regarding housing possession cases, as the noble Lord knows, there is a housing possession court duty scheme. We are running a specific focus on that, because there are areas where people are not getting the advice that they need. That was paused during the pandemic because we put a complete halt on repossessions, but we are now looking at the best way to make sure that we get focused housing advice to people who need it, when they need it.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, what was the Government’s original motivation back in 2012? Presumably, it was to save money, which this probably has not done overall. What the Government have done is to throw thousands of the poorest people in the UK into a situation where they cannot find justice.

[Lord Wolfson of Tredegar (Con)]

I am afraid that I cannot assist the House with what the Government’s motivation was in 2012. My motivation is very simple: the rule of law and access to justice. It is as simple as that.

Police, Crime, Sentencing and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, as I understand the position, the amendment, without qualification, was pressed to and supported in a Division. The normal situation to deal with the kind of question that the noble and learned Lord mentioned would be to modify that amendment by another, but that, for reasons that may be quite understandable, did not happen. Therefore, the amendment that was passed was unqualified and accordingly, strictly speaking, the rule would be as the clerk has said.

However, this House has discretion in these matters. The rules that are laid down are the best we can think of for every circumstance, but not even we can think of all the possible circumstances. Therefore, the clerk is perfectly right in this case, but justice suggests that it would be wise for the House to realise that, in this particular situation, a modification of the original amendment was certainly raised in the debate, although it was not put formally into the procedure. Therefore, to do justice in this sort of case, it would be right for the House as a whole to agree, in this very special circumstance, that this matter should be dealt with.

[Baroness Jones of Moulsecoomb (GP)]

I want to throw my considerable Green weight behind the noble and learned Lord, Lord Falconer. The Members opposite must realise in their hearts that this is unfair. I came into politics to make things fairer and this is not fair. It is unjust, as we have heard. Please let us debate it properly. I would vote for it—anyone can move it to a vote—and I hope it would pass.

[Lord Cormack (Con)]

My Lords, I support my noble and learned friend Lord Mackay of Clashfern. He put this with beautiful simplicity and total clarity. He underlined the fact that, at the end of the day, we are answerable for what we decide. I deplore bringing in important things at the late stage of a Bill, which is why I withheld my vote when we were voting and not debating last week, because it made a mockery of Parliament. This is not making a mockery of Parliament; it is underlining the humanity of Parliament. I believe we should follow the sage advice of my noble and learned friend.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will try not to repeat too much of what my noble friend Lord Paddick said. He pointed out—it is not a new point—that this has been a long and difficult Bill. I am bound to say that we must all hope that such a mammoth Bill, with such a wide range of diverse topics shoehorned into a single piece of legislation, will never be put before Parliament again. It has taken too many days, with too little time for the content involved and too much pressure, not just on MPs and Peers but on parliamentary staff, officials and those many organisations that seek to brief us about legislation. For us here, there have been too many early starts and too many late nights. It has been a very difficult experience.

None the less, I completely agree that the House has done its job well. We are very grateful to the ministerial team and their officials. On justice issues, I am, of course, particularly grateful to the noble Lord, Lord Wolfson, for the care, courtesy, approachability and engagement, not to say humour, that he has shown in our discussions. We have had some significant successes, from our point of view, on breastfeeding voyeurism and common assault in the context of domestic abuse. We have had some limited progress—my goodness, it is limited—on IPPs. That is clearly not the end of the story.

On Home Office issues, we are grateful to the noble Baroness, Lady Williams, for her care and the comprehensively courteous way she has dealt with the House, although I am bound to say that I share my noble friend Lord Paddick’s view that we have felt that she has not been able, on behalf of the Government, to make the concessions she perhaps might have liked to have made in some areas.

These Ministers illustrate the pressure there has been on all of us. In this context, I mention the tireless and efficient work of my noble friend Lord Paddick, who has borne the brunt of days and weeks of debate over many hours and days of sitting, and there have been many more days of preparation.

Before the Bill finally passes, we on these Benches regard it as largely profoundly regressive. On human rights issues, the House must expect Liberal Democrats and others in the Opposition to continue robustly to defend individual liberty in a way that we do not believe the Bill does. On justice, we will keep the pressure up for a humane sentencing system dedicated to rehabilitation and reform, combined with increasing use of community sentences. We will continue to work on women’s justice, where it seems that we are accepting very slow progress when we should be looking for dramatic improvement.

[Baroness Jones of Moulsecoomb (GP)]

I realise that I ought to be gracious, but I have hated almost every minute we spent on this Bill over the days, weeks and months. I deeply regret that it will pass. I wish it had not been presented in the first place and I wish we had not been forced to let it through, but it has been historic. One of the things that has been historic is the united opposition to some of its worst parts. That is something the House can be proud of. I look forward to many more days, weeks and months of arguing with the noble Baroness and the noble Lord on the Benches opposite.

Bill passed and returned to the Commons with amendments.