Private International Law (Implementation of Agreements) Bill [Lords]

Debate between Kenny MacAskill and Alex Cunningham

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Tuesday 24th November 2020 Commons Chamber

[Alex Cunningham]

My hon. Friend is correct. That could lead to considerable confusion in the system. What happens if a family member is moved from country to country? They will be subject to different jurisdictions and different laws, and it would be all the more complicated and difficult for resolutions to be made.

There appeared to be intense opposition to what the Government were trying to do, and it was not just from the other place; it was coming from all over the place. The Bar Council, in its helpful briefing, was highly critical of this new constitutional grab. It was somewhat concerned that the power in clause 2 to proceed by delegated legislation was very broad, and that, for instance, it enabled the appropriate national authority to make regulations for the purpose of or in connection with implementing any international agreement. To give effect to international treaties in domestic law is not a rubber-stamping exercise. The effect, implementation and enforcement of such provisions require robust debate, and we must protect the parliamentary scrutiny of such important legal provisions at all costs.

The Government attempted to raise arguments as to why that new constitutional measure would be necessary, but all of them have failed to convince. The first argument was that the new provision would allow the Government to implement each new international agreement without unnecessary delay, but there is no evidence to suggest that fast-track legislation is required. The implementation of international agreements in the past has often taken years, and there is nothing to suggest that implementing them through primary legislation would cause any difficulties without having to subject legislation to normal parliamentary scrutiny.

The Government raised the 2007 Lugano convention, which deals with the jurisdiction and enforcement of judgments between members of the European Union. The Government’s arguments appear to be that there may be only a short period in which to legislate to give effect to the Lugano provision at the end of the transition period. That is not an argument for developing that new Executive power more generally. The Government have not provided for clause 2 in relation to Lugano but, as the Chairman of the Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), said, there appears to be some movement on that, and I look forward to clarification from the Minister.

The Government also claimed that the Constitutional Reform and Governance Act 2010 allowed for sufficient parliamentary scrutiny. Once again, that argument does not carry much weight. As a result of clause 2 as originally drafted, the Government would be able to give force to model law without being subject to the scrutiny mechanism under the 2010 Act, which does not allow for the amendment of treaties or consideration of measures to implement them. That is a red herring, and the argument unravelled when subjected to expert scrutiny.

Even some of the Government’s own Members were rightly worried. It is worth putting on the record again a statement by the Conservative peer, Lord Garnier:

“Unquestionably, the provisions in Clause 2, which give the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome”.—[Official Report, House of Lords, 29 June 2020; Vol. 804, c. 483.]

I think that the Minister has begun to address those issues.

Sadly, the Lords asked the Government to drop clause 2. The Government used their majority. A Conservative peer asked that them not to do so, but that is what they chose to do, so clause 2 was reinstated. As I have said, their lordships were not about to roll over, and they were determined that the Government should not get away with a smash-and-grab raid on our constitution and the way in which we do business in this country. It is no good at all our trumpeting a return of control of our own affairs—control for our Parliament to make decisions on the issues that affect our country and citizens—only for Parliament to surrender that control to an overbearing Executive who appear to be seeking shortcuts to creating legislation and regulations. That is not what the British people handed the Government a majority to do. I do not think they would tolerate the sidelining of MPs they elected to serve them. More importantly, we want to ensure that laws in this land are not just fit for purpose, but have been subjected to the widest possible scrutiny. Opposition Members have always been opposed to the power in clause 2 to implement future international agreements by secondary legislation, but we recognise that change to that clause can be made.

As I mentioned, both the House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee considered whether the power in clause 2 was appropriate, and both made it clear that it was not. None the less, Labour welcomes amendments 1A and 1B, tabled in the other place, which act as a safeguard to clause 2, as reintroduced here. It was good to hear the Minister speak with some affection for those in the other place, and their expertise and skills. Although Labour Members remain disappointed that clause 2 has been reintroduced, the Government have heeded some of the Opposition’s concern by agreeing to the five-year sunset clause to clause 2.

Let me turn to amendments 4A and 4B. Labour also welcomes the amendment to remove the power from the Bill to create criminal offences that are punishable by imprisonment. For obvious reasons, this is a sensitive issue and it is only right that the Government act with caution in this area. Finally, Labour supports the amendment to place an obligation on the Secretary of State to consult before using the implementing power contained in clause 2 or before extending it for a further five-year period. Ideally, we would like to have seen further detail on who the Government are obliged to consult, but this is none the less better than nothing. That said, the Minister might like to address that issue in his summing up.

Before I conclude, I wish to pose a few questions to the Minister, where he could go some way to alleviating the remaining concerns many of us, in and out of this place, have about the amended clause 2. Will he give assurances to the House that any consultations on the implementation of a PIL agreement will be held in public rather than in private? Will he confirm that any consultations on the implementations of a PIL agreement will be announced in good time to allow experts to offer their views? Will he give assurances that the Government will produce a report on the outcome of such consultations and ensure that it is widely available to Members of this House? To sum up, although the Opposition would ideally have liked to see clause 2 taken out completely, or for greater restrictions to have been placed on its power, it is clear that the Government have listened to the concerns of the House and have taken some action to address them. We will therefore support these amendments this afternoon.

[Kenny MacAskill (East Lothian) (SNP)]

Obviously, I rise to support the general principles of the Bill. The Scottish National party, in giving support to this legislation, takes the view that it is not where we wish to be, but in the circumstances of where we find ourselves, it is the best that can be done. It has to be put in the context, both legal and political, of where we find ourselves. In the legal context, many others have mentioned, correctly, that private international law is not even noted a great deal within the wider sphere of law and is rather a specialist niche. I say that as someone who was a lawyer and practised for 20 years, who was a Justice Secretary for seven and a half years and who was the Convenor of the Subordinate Legislation Committee when the Scottish Parliament was first established. Private international law does occasionally result in people’s eyes glazing over, but it is fundamentally important. Significantly, subordinate legislation is equally of great importance and far too frequently missed. Both require to be addressed, because as the Minister and the hon. Member for Stockton North (Alex Cunningham) have mentioned, they are fundamental. This is fundamental to business contracts, as we seek to promote business in a globalised world. It is fundamental to ensuring that litigation can take place if accidents occur abroad, and in the world in which we travel more that is understandable. In family matters, it is fundamental because children are taken, and deeply distressing custody battles are waged over abducted children not only across the border between Scotland and England but around the world. It is also important for the enforcement of aspects such as aliment, as we call it in Scotland, or alimony, as it is referred to down here. All those things depend on the ability to settle on a jurisdiction—a jurisdiction of choice, or sometimes one that is required—in which rights can be enforced.

Counter-Terrorism and Sentencing Bill (Sixth sitting)

Debate between Kenny MacAskill and Alex Cunningham

Committee stage & Committee Debate: 6th sitting: House of Commons
Thursday 2nd July 2020 Public Bill Committees

[Kenny MacAskill]

It is a pleasure to serve under your chairmanship, Mr Robertson. Amendments 48, 49 and 50 were tabled in the name of Scottish National party Members but were put forward by the Law Society of Scotland, trying to achieve the best interests. That is obviously the position of the Government, but there is a distinctive legal jurisdiction. I know that yesterday the Prime Minister referred to the fact that there was no border between Scotland and England, but administratively and legally there most certainly is—the Minister has commented on that both today and yesterday.

Indeed, there is also the issue of polygraphs, which these amendments relate to. They are something that is currently unknown within the Scottish legal jurisdiction. They are something that, to be fair, the Scottish Government are sceptical about, but so are the legal profession and the judiciary. However, it is accepted that this is a reserved issue. It is a Government policy, and they are entitled to bring in that policy and it will have effect. Therefore, I think we are required to ensure that Scotland is able to deal with it adequately and appropriately.

These amendments are put forward on the basis of seeking to improve the legislation or seeking assurances from the Minister that the issues causing concern are being or will be dealt with. To be fair, the amendments are not simply tautological in any way; they are, in fact, a point of principle. We know that legislation is significant, and that the interpretation of words matters. It will produce a significant difference in the outcome, and it is not a matter that we can simply leave to a future court. In bringing the amendments forward, we seek clarification on the matters of concern. “Must”, as I say, is not tautological, in our view, but gives a clear indication that it is mandatory. “May”, while it may very well end up being the likely situation, certainly leaves it much more discretionary, even if it is not entirely absent.

As I say, the amendments were tabled on the basis of seeking clarification that Scotland will be able to act within the separate structures that we have, accepting the requirement and will of the Government, but that we take into account various issues and, in particular, the ability to protect the rights of the accused or, indeed, the released person in future issues that may come before them, to ensure that it is not counterproductive for them, and indeed that the system that we are operating is able to operate as efficiently as possible.

[Alex Cunningham]

We welcome this amendment in the name of the hon. Members of the Scottish National party, and we agree that the results of any polygraph must not be disclosed for use in a criminal matter. Put simply, they are far too unreliable to be used as evidence or an indicator of a person having committed a crime. We do not determine a verdict by the toss of a coin and Members will recollect the oral evidence given by Professor Acheson, who, in answer to a question about our operating regime for polygraph tests from the hon. Member for East Lothian, said:

“I must say I am not a great fan of the polygraph solution. Polygraphs are a very good way to demonstrate a physiological response to nervousness. Most people who take polygraphs are going to be nervous, so it is a very inexact science. I think it is probably slightly better than tossing a coin.”––[Official Report, Counter-terrorism and Sentencing Public Bill Committee, 30 June 2020; c. 80.]

We should not be using a method as unreliable as a polygraph to determine whether a person has committed a crime. So I join the hon. Member for East Lothian in asking the Minister to give assurances here and now that the use of polygraph testing for offenders released on licence will not become a stepping-stone towards the introduction of polygraph testing across the justice system.

As colleagues may have noticed, I have submitted a new clause on the issue of polygraphs so I shall reserve most of my comments for the stand part debate later today, but we do need some clarification and assurance that we are not moving in the direction of an unreliable method of fact-finding like polygraphs.

What knowledge and evidence do the Government have on the reliability of polygraph tests, and why are they intent on their use in this context? As Professor Acheson said in his oral evidence,

“Polygraphs are a very good way to demonstrate a physiological response to nervousness”—

I am aware that I am repeating myself—and I, for one, would certainly be nervous undertaking a polygraph even if I knew I had not committed a crime, which makes me question whether polygraphs provide anywhere near the necessary level of assurance. We need a much more robust system if we are to start making decisions around a person’s future. We are not entirely dismissive of the place of polygraphs or the potential role that they can play, but we would not want to see the burden of proof rely heavily, or even moderately, on a polygraph result.

I plan to go into further detail in later examination of the Bill, once we reach the new clauses, on the impact of polygraph licence conditions on those with protected characteristics. In the meantime, it would help if the Minister were able to clarify the Government’s position on polygraph tests, including plans for future use.

--- Later in debate ---

[Kenny MacAskill]

I am happy to accept the Minister’s reassurances. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Alex Cunningham]

Again, I will be brief. I am aware that an amendment that I have tabled cannot be selected for debate, so I am content to address clause 35 stand part instead.

We accept that polygraphs have their uses, albeit very limited. Most notably, we recognise that polygraph examinations have been used with some success in the management of sexual offenders since 2013 by the National Probation Service. The Minister spoke about that and convinced us that, for that reason, we do not need a pilot for the Bill.

However, as has been said over and again in the evidence sessions and in debate, they are far from 100% accurate. While they give an indication, when used in the right conditions, that can detect traits associated with lying, they are far from infallible. The Bill allows the Secretary of State to impose mandatory polygraph examinations on high-risk offenders who have been convicted of terrorist offences or offences related to terrorism. Specifically, it allows for mandatory polygraphs to be taken three months post release and every six months thereafter unless the test is failed, after which the offender would have to take them more regularly.

However, the Government seem shy of spelling out the detail of how their proposed regime will work, leaving it to secondary legislation in the shape of regulations, which are mentioned in subsection (9). I, for one, am always a little wary of the Government when they opt for that route.

The Minister needs to provide a robust explanation of why he does not want that detail in the Bill. Is it a case of having insufficient detail at this stage to work out exactly what he wants to achieve with polygraph testing, or does he share everyone else’s reservations about the application of the test? I hope that he will explain why there has to be a delay. I am sure that if the Minister looked at the legislation relating to the application of polygraph tests to sex offenders, he could cut and paste the wording, and tidy it up to suit this legislation, so there is no excuse for it not being in the Bill.

The Ministry of Justice has committed to a review of the value of polygraphing terrorist offenders and those convicted of offences related to terrorism after two years, which we very much welcome. However, as I said earlier, we would welcome that kind of commitment in the Bill, and a clear statement that people with protected characteristics will be covered specifically. It would help the Committee were the Minister to spell out how he expects such a review to be conducted, what he expects out of it, and whether he would adopt the need to achieve the specific things that I have spelled out.

I reiterate that Labour does not object to the use of polygraphs as set out in the Bill, but we should see the detail from the Government on exactly what they want to do. They ought to spell it out in the Bill. I hope that the Minister will reflect on that, and perhaps accept that it would be an easy job to cut and paste from the other legislation and to table an amendment on Report that provides the clarification we seek.

Counter-Terrorism and Sentencing Bill (Third sitting)

Debate between Kenny MacAskill and Alex Cunningham

Committee stage & Committee Debate: 3rd sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

[Alex Cunningham]

Q We are a long way from anything like that happening in the UK.

Professor Acheson: I think we probably are. We are outriders in that respect in relation to the rest of Europe, which does heavily involve non-governmental organisations and community groups, for example, in reintegration. We have seen that in the Molenbeek suburb in Belgium, which is responsible for producing quite a number of jihadis, where the community has been involved and works in partnership with, although separate from, the statutory bodies whose first priority is safety and security. That is a necessary but insufficient way of dealing with the problem.

[Kenny MacAskill]

Q Mr Acheson, you are well sighted on the Scottish system with the Risk Management Authority and the order for lifelong restriction. You talked about good regime designs not being punitive, but the imposition of a significant sentence without the opportunity for early release must appear to be so. Do you think that the order for lifelong restriction is perhaps the better option for many who are convicted by a court, rather than a mandatory sentence?

Professor Acheson: I am not sure which would work better. I am certainly on record as saying that I support the Government in much longer sentences for terrorist offenders, primarily because it is a unique opportunity to incapacitate an ideologically motivated offender and bring services around that individual. Those services need to be extended through the gate and into the community.

We need to focus on this as a national security issue that we need to deal with in a different way, so lifelong restriction may have its merits. The key thing is that we make sure that support and control exist around offenders who are being released and who may go back into extremist offending, so that in whatever way we apply restrictions on their liberty—including TPIMS, for example—we do it in a proportionate way. There is absolutely an argument that punitive measures increase alienation. I think that might be a trade-off, in some respects, for people with whom we may never be satisfied that they are safe to release. We have to embrace the idea that there will be a few offenders who must be kept in prison indefinitely, because they either cannot or will not recant a hateful ideology, and they have the means to mobilise that into violence in the community.

--- Later in debate ---

[Alex Cunningham]

Thank you.

[Kenny MacAskill]

Q Professor Silke, I do not know whether you are aware, but in Scotland there is a sentence called the order for lifelong restriction, which is indeterminate but allows for release or indeed for detention to continue. Given your views on the benefit of some sort of early release being available for those who show remorse or rehabilitation—indeed, the avoidance of people being released at the end of their determinate sentence because they have served it—do you think that an order for lifelong restriction may be a more appropriate sentence for some terrorists in Scotland?

Professor Silke: Honestly, I do not know enough about how it works to make an informed assessment of it. I am always cagey about anything indeterminate, which might imply indefinite detention. The advantage of having a fixed term, rather than something quite open-ended, is that at least you know exactly what you have to work with.