Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Baroness Meyer (Con)]

My Lords, I am the last person to speak who was also in Rwanda last week and attended the same meetings. Like the noble Lord, Lord Murray, what I heard was that it may not be exactly like in some countries but, within Africa, and compared to everything, the witnesses said that they were protected because of the constitution, that gay men could walk in the street holding hands and were not abused, and that Rwanda is a safe enough country to send people. I do not see where this obsession comes from that Rwanda is unsafe, and I suggest, as I said last time, that a lot of people who have preconceived views should go to Rwanda and check for themselves.

[Lord Anderson of Ipswich (CB)]

My Lords, do these exchanges not suggest that many of us are liable to hear what we hope we will hear and that there is good sense therefore, instead of leaving these difficult decisions to the judgment of Parliament, to leave them to the people who are better equipped to make them at the end of the day—including, on an interim basis, as the noble Baroness’s amendment wishes—the courts?

[Lord Coaker (Lab)]

I hesitate to stand up, looking around. We very much support Amendment 33 from the noble Baroness, Lady Chakrabarti. If she wishes to test the opinion of the House, we will certainly support her.

I just say to the noble Lord, Lord Murray, in defence of the Select Committee system, that sometimes there are differences of opinion on Select Committees. However, it is a really important point of principle about Parliament that reports from Select Committees, both in this and the other place, are hugely respected, even when there is a division of opinion. We need to be careful about suggesting that a chair of a Select Committee has come to an opinion because of their party-political allegiance. That is a difficult point to make. In my experience, chairs of Select Committees of all political parties have sometimes made very difficult decisions and come to very different conclusions from those of the party of which they are a member. That important point of principle underpins our democracy, and we need to be careful about suggesting that the chair of a Select Committee has been openly influenced by party-political allegiance to come to a particular conclusion. Going down that route is dangerous.

The point about this, as my noble friend Lady Chakrabarti outlined, is to try to give immigration decision-makers the opportunity to see whether a particular decision is able to be challenged in the courts and whether an individual’s rights need to be protected. My view is that this is of course about the rule of law, but the courts are there to ensure that justice is done. Justice in this case requires the ability for the law, as it impacts an individual, to be tested in the courts. That strikes me as fundamental to how the rule of law operates.

As the noble Viscount, Lord Hailsham, said, sometimes that is really inconvenient to Governments. Sometimes it is really convenient to all of us. Justice is an important part of our democracy and goes alongside the rule of law. I just say to my noble friend Lady Chakrabarti that I think that is what her Amendment 33, supported by others, seeks to do and why we would support it.

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[Lord Faulks (Non-Afl)]

My Lords, I promise I will be brief. First, there appears to be agreement that there was not total agreement on the position of international law. Noble Lords will remember the speech of the noble and learned Lord, Lord Hoffman, referring to the article in Policy Exchange. This is not the time to repeat the arguments, one way or another.

It was also agreed that the procedure adopted by the European Court of Human Rights was sub-optimal and there is room for improvement. Improvement may come along the line in due course; we wait to see, and there are some hopeful signs. However, the current position is that it is not a satisfactory procedure.

We then come down to the power. It is important to stress that the Minister has a power, not a duty, which he or she can exercise to ignore the ruling. The Minister does not have to ignore the ruling, and no doubt they will look carefully at the reasons given. Amendment 37 suggests that the Minister will consult the Attorney-General, who I am glad to see sitting in her place beneath the Throne today. I imagine that in a normal course of events, a Minister taking a decision of that gravity would consult the Attorney-General. However, the fact that there is a slender basis for the jurisdiction, that the interim procedure is unsatisfactory, and that there is a power, seem to me to hedge around this provision with appropriate safeguards.

[Lord Anderson of Ipswich (CB)]

My Lords, I support all the amendments in this group and will be sorry if, as I suspect may be the case, none of them is put to the vote.

I spoke in Committee on the status of interim measures of the European Court in international law. I will not repeat any of that now, although I remind the Minister, as I did informally a moment ago, of the exchange we had at the end of that debate, at about 10.30 pm on 19 February. I asked him whether he agreed with me that if a Minister decided not to comply with an interim measure, as Clause 5 permits, this would place the United Kingdom in breach of its international obligations. He gave me no answer—and frankly accepted that he was giving me no answer—but did undertake to write to me. The Minister did tell me a moment ago that such a letter has been sent, but I am afraid that, despite his best efforts, it has not yet reached me. Will he please be kind enough to read the relevant passage when he answers this debate?

The European Court of Human Rights takes one view, which is generally accepted to be binding on contracting states—including our own—by Article 32 of the ECHR. In brief reference to the point raised by the noble Lord, Lord Lilley—I thank him for the courtesy he extended to me earlier in today’s debates—the binding effect of interim measures rulings was clearly accepted in this case by the French Conseil d’Etat, in its judgment of 7 December 2023. I know the noble Lord is very conversant with the French language; if he reads paragraph 5 of that judgment, he will be left in no doubt as to the relevant position.

If, as the noble Lord, Lord Jackson, suggested, the French Government are flouting both the interim measures of the European Court of Human Rights and the judgment of their own highest court, shame on the French Government. Shame on any Government who behave like this. We are used to seeing the Russian Government, the former Government in Poland, behave like this, and we have to make up our mind which camp we are in. That is why it is so important that we understand what the Government’s position is before we vote on the Bill. Is the purpose of Article 5 to permit Ministers to involve this country in breaches of international law, or is it not? I hope that this time, we will have some clarity from the Front Bench.

[Lord Deben (Con)]

My Lords, as the House will know, I tend not to want lawyers to have it all their own way when they are dealing with legal issues, but I rise because it seems to me that this is an occasion to point to the fundamental problem the Bill presents. It asks Britain, which is absolutely dependent on international law, as we found in our debate yesterday, to present a situation which, at its very best, looks like flouting international law. The previous speech, by my fellow Ipswichian, is germane to this. I want to bring it back to this key issue. Those who objected to the European Union and our membership really cannot come to this House and say, “Because the French are doing it, we ought to copy them”. That seems to me to be a very curious position.

This brings us to a very crucial issue about this House. Earlier on, the noble Lord, Lord Coaker, rightly said that the Government have addressed the world to say that whatever we say, they have no intention of changing the Bill. That is unacceptable. It is an insult to the House, and it is constitutionally improper.

However, I say to the noble Lord, Lord Coaker, that the Opposition also have a responsibility in this. We all know that, so far, the Opposition are not prepared to pick one of these amendments, which are about our acceptance of international law, and to press it to the point at which the Government have to give way or lose the Bill. I say to the Opposition that the responsibility of opposition is as great as the responsibility of government. In the hands of the Opposition is the ability to make this Government turn the Bill into one that conforms with international law. If they do not do that, they will have failed in their duty and in the way they treat this House.

As the Opposition may become the Government, this, in my view, undermines their position, because the world knows why they do not want to do it: for electoral reasons. I find that unacceptable in the party I support; I find it just as unacceptable in the party with which I disagree.

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[Lord Stewart of Dirleton (Con)]

My Lords, the answer to the noble Lord’s question is “imminently”.

Returning to the correspondence with the noble Lord, Lord Anderson, I quote from that letter that bears my signature and which I trust that he will see in due course. He asked whether the Government agree that if, in compliance with Clause 5, a Minister decides not to comply with an interim measure, that would place the United Kingdom in breach of its international obligations. Clause 5 provides that it is for a Minister only to decide whether the United Kingdom will comply with an interim measure indicated by the European Court of Human Rights in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Acts. The Bill is in line with international law. The Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the clause that requires the United Kingdom to breach its international obligations. In any event, it is not correct that a failure to comply with interim measures automatically involves a breach of international law. There are circumstances where non-compliance with an interim measure is not in breach of international law. There follows a list of further addressees whom I hope will receive the letter presently.

[Lord Anderson of Ipswich (CB)]

I am very grateful to the Minister. I recall that, of the Grand Chamber in Mamatkulov, 13 of the 14 judges in the majority thought that there were no circumstances in which a failure to comply with interim measures could be in accordance with international law. The 14th expressed the view that the Minister has just expressed. Can the Minister indicate in what cases it is lawful under international law not to comply with interim measures issued by the court?

[Lord Stewart of Dirleton (Con)]

It would be in circumstances where compliance is not possible.

Turning to Amendment 37 in the name of the noble Lord, Lord Coaker—

[Lord Stewart of Dirleton (Con)]

My Lords, I now turn to Amendment 37 in the name of the noble Lord, Lord Coaker.

[Lord Anderson of Ipswich (CB)]

My Lords, I do not wish to prolong things, but so we can be completely clear, is the Minister accepting that in circumstances where the Strasbourg court has made an order and it is possible for the United Kingdom to comply with that order, then the United Kingdom will be in breach of its obligations if the Minister decides not to comply with it? That is what I take from what he has just said.

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[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to noble Lords from all sides of the House, whatever their views may have been, for contributing to this debate. The result has been a much more interesting discussion than I anticipated in my rather brief and somewhat lame introduction to my amendment.

I shall make only one point. My amendment is concerned with the position of our own courts. As Clause 5(3) stands, it prohibits our courts from having any regard to an interim measure when considering an application which relates to a decision to remove someone to Rwanda. The noble Lord, Lord Faulks, is quite right when he says that the current procedures under Rule 39 are suboptimal. There are various defects which we would not accept in our courts, but that does not apply to our procedures. They are perfectly open, proper and thorough. Our judges would be able to take on board all the points that have been made in the course of the discussion and weigh up one way or another whether this measure from the European Court of Human Rights should be given effect to. I am not asking that they should be bound to give effect to it but that they should be permitted to do so. It seems to be a perfectly reasonable thing to ask our courts to do.

I have considered whether I should press this to a vote, but we have to ration ourselves at this stage of our proceedings and have regard to what happens next. If this goes down to the House of Commons, no doubt it will bounce back again and so on. We have to be careful how far we press things to a Division; I would have liked to do so, but at some points one has to exercise self-restraint, which I am doing.

[Lord Anderson of Ipswich (CB)]

Does the noble and learned Lord take comfort, as I do, and perhaps some people watching these proceedings might do, by recalling that on Monday we agreed to an amendment that requires this Bill—this Act, as it will become—to comply with international law when it is implemented?

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[Baroness Lister of Burtersett (Lab)]

My Lords, I will say a couple of things about Northern Ireland, following the noble Lord, Lord Dodds of Duncairn, although I suspect from a very different perspective. First, as I pointed out in Committee, the Joint Committee on Human Rights asked for a full explanation before Report. We are almost at the end of Report and, as far as I am aware, despite all the talk of imminence, we still do not have the Government’s response to the JCHR’s report. I very much support what the noble Lord, Lord Alton, said about that earlier—it really is not good enough.

I turn to the disapplication of human rights and the implications for the Good Friday agreement and the Windsor Framework. I know I will not change the Government’s mind on this, but I say this partly to amplify what was said earlier and put this on the record. The cases that the noble Lord referred to have been brought to my attention. In their revised fact sheet—and in almost identical words in a letter to me—the Government said that

“the bill does not engage the Belfast (Good Friday) Agreement, including the rights chapter - those rights seek to address longstanding and specific issues relating to Northern Ireland’s past and do not extend to matters engaged by the bill”.

But the cases to which the noble Lord referred made something absolutely clear. The 28 February decision in the 2024 case of Dillon and others—NIKB 11 —referenced the overarching commitment to civil rights in the relevant chapter of the Belfast Good/Friday agreement. It said in paragraph 554:

“A narrow interpretation of ‘civil rights’ undermines the forward-facing dimension of the non-diminution commitment in article 2(1)”.


It says it is “future-facing”; it is made clear that it is not looking just to the past.

Similarly, in Angesom, which was also referred to by the noble Lord, the decision said:

“The court rejects the submission by the respondent that the rights protected by the relevant part of the GFA are frozen in time and limited to the political context of 1998. The GFA was drafted with the protection of EU fundamental human rights in mind and was therefore intended to protect the human rights of ‘everyone in the community’ even ‘outside the background of the communal conflict’”.


So I do not think that what the Government have come up with so far is good enough in explaining why they believe that the disapplication of the Human Rights Act does not apply and will not affect the Good Friday agreement and the Windsor Framework.

[Lord Anderson of Ipswich (CB)]

My Lords, I echo the importance of the issue that the noble Lord, Lord Dodds, has raised in his Amendment 44ZA. That issue, in a nutshell, is that relevant provisions of EU law apply in Northern Ireland and may, under the Northern Ireland protocol and Windsor Framework, result in the judicial disapplication of incompatible legislation.

The Northern Ireland Human Rights Commission, which of course is the statutory body appointed to look at these things, reported that Clauses 1 and 2 of this Bill are contrary to Article 2 of the Northern Ireland protocol. I asked the Minister in Committee whether the Government agreed with that, and he wrote to me on Monday as he had promised. The letter expressed the Government’s disagreement with the NIHRC, though without engaging with the detailed provisions that it had identified relating to asylum seekers as problematic for the application of the Bill in Northern Ireland. I respectfully question whether that conclusion is correct, given statements already made by the High Court of Northern Ireland in the various cases referred to by the noble Lord and the noble Baroness, Lady Lister.

I understand that the final judgment in the Northern Irish challenge to the Illegal Migration Act 2023, to which the noble Lord, Lord Dodds, referred—I think that he referred to the commission decision—is expected in the next 10 days or so, perhaps even in time for what we must assume will be ping-pong. I do not support the noble Lord, Lord Dodds, in his amendment, which asks us to disapply the EU withdrawal Act, but let me make a different suggestion. As the Government apply themselves to the judgments of the Northern Ireland courts, which have been referred to, I hope that they will reflect that, by accepting some of the amendments that your Lordships have already made to this Bill, they can protect it from successful judicial challenge in Northern Ireland and so ensure that it applies across the whole United Kingdom as intended.

On Amendments 44A and 44B, relating to the position of the Channel Islands, I declare an interest as a soon- to-be-retired member of the Courts of Appeal of Jersey and Guernsey. I have written to the Minister on this issue already and await with interest his response to the compelling points made by the noble Lord, Lord Dubs. I add only that the irregularity that he has identified surely applies, as he indicated, not just to Jersey or the Channel Islands generally but to all the Crown dependencies—including, I assume, the Isle of Man.

[Lord Falconer of Thoroton (Lab)]

My Lords, I echo what my noble friend Lady Lister and the noble Lord, Lord Anderson, have said, in supporting the approach that the noble Lord, Lord Dodds, has taken on behalf of Northern Ireland. I do not necessarily agree with the suggestion that he is making to solve the problem, but it is clear that what he is saying—and what I believe the people of Northern Ireland are entitled to—is total openness about what is going to be achieved in relation to this. If the position is that the Government are saying with one voice that, actually, Northern Ireland will be treated exactly the same as the rest of the country, because the Windsor Framework relates only to trade, whereas in fact the position will be different, the Government should either come clean in relation to that or should propose amendments.

I echo also what the noble Lord, Lord Anderson, said, which is that, if the Government were to accept some of the amendments that have been made on Report, which in effect incorporate some degree of judicial control, the question of there being any inconsistency between the Northern Irish position and that of the rest of the United Kingdom would almost certainly go away. It may be that that solution is not welcome to the noble Lord, Lord Dodds, but it would nevertheless lead to a conclusion that there would be no difference in the position between Northern Ireland on the one hand and the rest of the United Kingdom on the other.

I also support my noble friend Lord Dubs when he raises the question of why the Channel Islands are not being treated with the usual constitutional respect with which they are normally treated. What is it about this Bill that makes the Government think that they can throw all constitutional convention to the wind?

Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Inglewood (Non-Afl)]

My Lords, as someone who was called to the Bar many years ago and has not subsequently done a great deal of law directly, I have been interested, amused and dazzled by the breadth of learning that we have heard.

I would like to make a couple of remarks. I start with what the noble Lord, Lord Hannay, said. We live in a world where we have domestic jurisdiction, but also where everyday life is very significantly affected by all kinds of international agreements and arrangements, and we all benefit from that. Against that background, it is important that that system remains stable and respected; if it does not, we will all suffer.

We have heard this evening the arguments as to whether there is jurisdiction in respect of interim injunctions from the ECHR. I personally do not feel qualified one way or another to make a value judgment about that. What I do think is important is that, once you have got the interim injunction—and I heard what the noble Lord, Lord Faulks, said—that is a piece of evidence that is relevant to the issues that we are discussing.

On balance, the interim injunctions—there are not many of them, as the noble Lord, Lord Scriven, said —are evidence that something is not quite right. I am therefore concerned about the provisions in Clause 5 that we have been talking about: there will be a power with the Minister to set aside a piece of evidence, which I believe has come from a respectable source, that something is not right.

I think the remarks of the noble and learned Baroness, Lady Butler-Sloss, were very important. Regardless of international law, this is important in the context of domestic law, where there is real evidence—and I think it is real evidence—that something is awry. If you are to have some provision of the kind that we are considering this evening, there has to be a presumption that it will be adhered to but also that, if you are concerned, there is some kind of mechanism to set it aside, rather than the other way around.

[Lord Anderson of Ipswich (CB)]

My Lords, as a signatory to the stand-part proposition in the name of the noble and learned Lord, Lord Etherton, I will confine my remarks to the question of whether it is contrary to the European Convention on Human Rights, and thus to international law, for a contracting state to disregard interim measures issued by the European court under Rule 39. Spoiler alert: it is, and the question is not so difficult as some noble Lords have suggested.

I declare an interest as a member of the Bar who has appeared for 30 years or so in that Strasbourg court, both for applicants and for states, and who has therefore been on the wrong end of some Rule 39 measures, including at least one which the court had to be persuaded to reverse. So I welcome the steps that the European Court of Human Rights is taking, partly at the instigation of this country’s Government, to improve its procedures and make them more transparent, including, as the court itself announced on 23 November last year, the attribution of interim measures to the judges who made them.

We have heard a lot about the Policy Exchange paper of last May. The arguments have been very well summarised in other speeches, particularly those of the noble Lord, Lord Wolfson, who has spoken to them a couple of times. Happily, I do not need to take your Lordships through those arguments or, indeed, the detailed rebuttals of them, which will be found in the Bingham Centre report of July of last year. Both reports are footnoted in the Constitution Committee report, to which the noble and learned Lord, Lord Falconer, has referred. The reason that I do not need to do that is that the position was made completely clear in law by the European court, in a judgment that has been referred to: the 2005 judgment of the Grand Chamber in Mamatkulov v Turkey.

It has been mentioned, but I will say a little more about it. Of the 17 judges who ruled on this issue in the Grand Chamber, a clear majority of 14 held that Article 34 of the convention, which guarantees the effective exercise of the right of application to the Strasbourg court, is violated when a state fails to comply with interim measures. For 13 of those 14, violation follows automatically from a failure to comply. The 14th thought that there was a violation if, as in Mamatkulov itself, applicants are as a matter of fact prevented from effectively exercising their right of application,

Three judges dissented: those appointed by Turkey, Russia and Liechtenstein. Their dissent is long and tightly argued. Policy Exchange would have been proud to publish it. Its authors looked at the text, the preparatory materials, state practice, the analogy with the International Court of Justice and the relevant rules of international law—all ground covered subsequently by Professor Ekins and tonight by the noble Lord, Lord Howard, and the noble and learned Lord, Lord Hoffmann. They accused the court, just as Professor Ekins did, of exercising a legislative rather than an interpretative function.

Court cases, unlike academic debates, produce clear winners and losers. The result of Mamatkulov, since followed in other judgments, is quite simply conclusive of the matter. The arguments advanced by the dissenting judges, and later by Professor Ekins, were decisively rejected. Why does this matter? Again, noble Lords have had reference to it: the reason it matters is Article 32 of the European Convention on Human Rights, which provides two things of importance. First,

“the jurisdiction of the court shall extend to all matters concerning the interpretation of the convention”.

Secondly, as my noble and learned friend Lord Etherton said:

“In the event of dispute as to whether the Court has jurisdiction, the Court shall decide”.


That is really it. The European Court interpreted Article 34 in Mamatkulov as requiring compliance with interim measures issued by the court because, as the court put it in its judgement at paragraph 135, interim measures

“play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and when appropriate securing to the applicant the practical and effective benefit of the Convention rights asserted”.

That ruling is binding, as the United Kingdom agreed it would be when we signed and ratified the convention, including Article 32. Perhaps we should not be very surprised that a treaty means what the court constituted to interpret it says that it means. Even the dissenting judges did not suggest otherwise. They did not like the majority judgment, but neither did they describe it, in a word recently used by Professor Ekins, as “lawless”. They accepted it.

State practice since the Mamatkulov decision is supportive of it. The Committee of Ministers, of all the Council of Europe states, resolved in 2010 that

“the Court’s case law has clearly established that Article 34 of the Convention entails an obligation for States Parties to comply with an indication of interim measures made under Rule 39 of the Rules of Court”.

The requirement on states parties to comply with interim measures was reiterated in the Izmir Declaration of 2011 on the Brussels Declaration of 2015, to which of course the United Kingdom was a party. It was endorsed in very clear terms by the French Conseil d’Etat as recently as 7 December last year, when that senior court required a person deported to Uzbekistan in breach of interim measures to be repatriated at the state’s expense.

In a recent email to noble Lords, Policy Exchange described its own 2023 paper as “authoritative”. I am afraid that whoever wrote that was high on their own supply. It is supported neither by the court whose job it is to provide authoritative interpretations of the convention nor by state practice, nor even, subject to anything the Minister may say, and I will be listening carefully, by our own Government. That at any rate is what I take from the last paragraph of the ECHR memorandum on the Bill.

To throw this established position into doubt might once have been merely eccentric; in current conditions, it is positively dangerous. As recently as 2005 there was a culture of compliance. The Strasbourg court could say, in Mamatkulov, paragraph 105:

“Cases of States failing to comply with indicated measures remain very rare”.


However, the “good chaps” theory no longer prevails in the Council of Europe. Russia challenged the jurisdiction of the court in 2021 when it required Alexei Navalny to be immediately released from prison due to the risk to his life and health—interim measures strongly supported by our Government—while Poland challenged it last year when its previous Government refused to comply with interim measures relating to the politicisation of its judiciary.

Supranational courts do not have bailiffs to enforce their decisions. The fabric of international law—that “gentle civiliser of nations”, as it was once described—is easily torn but not so easily repaired. It can be torn by acts such as that which is proposed to us—acts that enable or facilitate actions in breach of international law.

Clause 5 is peculiar, as the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Hoffmann, have both said. If Rwanda is as safe, as the Government invite us to declare, Clause 5 is unnecessary. If it is not safe, Clause 5 will compound the injustice of Clause 4. Either way, Clause 5 extends the damage already done by Section 55 of the Illegal Migration Act because it severs the link, praised by the noble Lord, Lord Jackson of Peterborough, between non-compliance and procedural reform. If we accept this clause, we will not only be authorising Ministers to contravene this country’s obligations; we will be handing an excuse to illiberal Governments across the continent to do the same, and worse. We should be ashamed to do so.

[Lord Purvis of Tweed (LD)]

I am not a lawyer and I do not wish to refer to any of the legal aspects of the amendment; there has already been enough of that in the excellent contributions from noble and learned Lords. I just want to address the point about why the United Kingdom should feel that we are particularly vulnerable to this court.

There has been reference to other countries that have had interim measures granted against them. It is of course the case that the interim measures relating to the Rwanda MEDP have a high profile. The noble Lord, Lord Faulks, seems to continue to be uncertain as to why the interim measures were given. I think he knows that, on the day that the court issued the interim measures, it also issued the statement of the decision when it notified the UK Government of the interim measures. These are public documents and they are online.

The interim measure relating to the case of NSK was put in place on the grounds that that the individual should not be removed to Rwanda until the ongoing domestic judicial review process was concluded. That is the reason the court gave for that case. I am not a lawyer and I know the noble Lord, Lord Faulks, is, but it sounds reasonable to me that while a domestic—

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To conclude, Clause 5 makes it clear that it is for a Minister of the Crown to personally make the decision about whether to comply with a Rule 39 interim measure indicated by the Strasbourg court. The Minister will be accountable to Parliament for the exercise of that personal discretion. It makes it clear that domestic courts may not have regard to the existence of any interim measure when considering any domestic application or appeal following a decision to remove a person to Rwanda in accordance with the treaty. On that basis, I invite the noble Lord, Lord German, to withdraw his amendment.

[Lord Anderson of Ipswich (CB)]

The Minister said, and I agree, that nothing in Clause 5 requires the United Kingdom to breach its international obligations. Does he agree that, if a Minister, in compliance with Clause 5, decides not to comply with an interim measure, that would place the United Kingdom in breach of its international obligations, or have the Government thrown their lot in with the dissenting judges and with Policy Exchange?

[Lord Stewart of Dirleton (Con)]

My Lords, ultimately the matter for the Committee to take into account—I appreciate that I am not giving the noble Lord an answer—is where this leaves our domestic obligations, not our international ones.

[Lord Anderson of Ipswich (CB)]

Surely it is relevant to this Committee, if we are being invited to pass Clause 5 into law, to know whether or not, in the Government’s view, it will enable or facilitate a breach of international law by a Minister acting in reliance on it. The Minister does not seem to be able to tell us whether he takes that view or not. I read the human rights memorandum as taking the orthodox view that there is a breach of our international obligations when interim measures are disregarded by a Minister. Is the Minister telling us that the position has changed since that memorandum was drafted?

[Lord Stewart of Dirleton (Con)]

My Lords, in addressing the Committee, I outlined that the position in relation to international measures is that they must be incorporated into domestic law before they take on binding character for our domestic courts.

[Lord Anderson of Ipswich (CB)]

I do not believe there is any dispute in this Committee about the proposition that the Minister has just delivered himself of. However, we are not talking about domestic law; we are talking about international law. If the Minister cannot answer the question now, will he add it to what is, I am afraid, the lengthy list of questions on which he has kindly offered to write to the Committee in due course?

[Lord Stewart of Dirleton (Con)]

My Lords, in view of the hour and the information which I have to hand, and given the stark terms in which the noble Lord expresses himself, that might perhaps be the better course.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

19: Clause 2, page 2, line 33, leave out “conclusively”
Member’s explanatory statement
This amendment and others in the name of Lord Carlile of Berriew would ensure the declaration that Rwanda is a safe country is capable of being rebutted in law by credible evidence. The amendments require decision-makers (including courts or tribunals) to consider credible evidence that Rwanda is not a safe country.

[Lord Anderson of Ipswich (CB)]

My Lords, I rise in place of the noble Lord, Lord Carlile, to speak to Amendments 19, 21, 25 and 28, in his name and in mine, which are also signed variously by the right reverend Prelate the Bishop of Manchester, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Etherton. We are all grateful to Justice for its assistance in drafting these simple but important amendments.

The purpose of these amendments is to replace the irrebuttable presumption in Clause 2 that Rwanda is a safe country by a rebuttable presumption to the same effect. Decision-makers would begin from the same position that Rwanda is safe, but they would be entitled to consider credible evidence to the contrary. That is provided by Amendments 19 and 21, which amend Clause 2(1).

Amendment 28 supplies more detail by indicating the matters on which evidence could, if it is available, be presented: the risk of refoulement from Rwanda, the risk that there will be no fair and proper consideration of an asylum claim there, and the risk that Rwanda will not act in accordance with the treaty. These are all things that, under Clause 2 as it currently stands, may not be considered by independent courts and tribunals. They are not only relevant but of the highest importance to the lives and safety of anyone we send to Rwanda.

Finally, Amendment 25 would lift the bar on courts and tribunals considering claims that Rwanda is not safe. It is the logical corollary of Amendments 19 and 21: if decision-makers are entitled to consider credible evidence that Rwanda is not safe, the courts must be entitled to do so in order to determine whether they came to a lawful decision. Amendment 29, from the noble Lord, Lord Coaker, is welcome, but without an equivalent of Amendment 25 I am afraid that it does not do the job.

These amendments would not open the floodgates to vexatious claims. To be considered, any evidence must meet the credibility threshold—a well-established feature of Home Office practice, which, in a policy document entitled Assessing Credibility and Refugee Status in Asylum Claims Lodged on or After 28 June 2022, highlights a number of so-called credibility factors, including sufficiency of detail, internal consistency and plausibility.

To summarise, Clause 2, as it came to us from the Commons, requires officials to disregard relevant facts and prevents the courts calling them to account for it. With Clause 1, it creates a legal fiction—not in the field of tax law or planning law, where such things have their place, but in the totally different context of human safety and its opposite. It suppresses the evidence-based inquiry on which our common law and, ultimately, our democracy depend. Accept this and, as the noble Lord, Lord Hennessy, said in his Second Reading speech, with all his constitutional expertise:

“We shall be living in a different land, breathing different air in a significantly diminished kingdom”.—[Official Report, 29/1/24; col. 1022.]


These four amendments would enable those entrusted with these sensitive decisions to look at Rwanda as it is, not as we all hope that it may become. But I must acknowledge that, for this very reason, they go to the heart of this Bill, for it is not a bright by-product of this Bill but its whole purpose to assert to be true what first the Supreme Court and then our International Agreements Committee have found to be false, and then to protect that false assertion from rational challenge by decision-makers or in the courts.

This is not, like the previous group, a debate about exceptions. The deterrence theory on which the Bill is founded has the unfortunate result that it is the most objectionable features of this Bill to which the Government hold most tightly, even when, as here, they set a thoroughly depressing precedent. There are limits to my optimism that the Minister will respond positively to these amendments but, knowing him and respecting him as I do, I do not altogether abandon hope.

[Baroness Chakrabarti (Lab)]

My Lords, I support the noble Lord, Lord Anderson, who has put his case with the precision and succinctness that we remember of our late friend Lord Judge. These amendments would render the safety of Rwanda, which we hope will come in the future, a rebuttable presumption rather than an absolute conclusion. They echo my Amendment 34, which we discussed in the first group, but put more flesh on those bones. I commend them to the Committee.

I also remind the Committee that the amendments echo a finding by your Lordships’ Constitution Committee. Ministers say that it is precedented and normal to have lists of safe countries in asylum statutes. That has been the case in the past, but in those past cases the consequence of being a safe country on a so-called and unfortunately coined white list of countries has been only a rebuttable presumption. So Ministers were wrong, for example, to say during the course of the Illegal Migration Act, “Nothing special here, nothing new”, when they said that it will be an absolute conclusion and irrebuttable presumption that any country is absolutely safe.

We need to amend this Bill in good faith. We need belts and braces. We will have to look at other provisions and amendments around how it is that we will judge when Rwanda becomes safe, as we all want it to be. In any event, even when all the experts in the world—the UNHCR, independent monitors, parliamentary committees —say that things have gone well in the last couple of years and that the treaty worked out, and how wrong we were to be so sceptical as things have gone so well, so quickly, and Rwanda is considered to be one of the safest countries in the world for its treatment of asylum seekers and refugees, it is still right in principle that the presumption of safety should be a rebuttable presumption and not an absolute conclusion that squeezes out the judgment of civil servants, Border Force and Ministers, or ousts the jurisdiction of our courts.

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[Lord Stewart of Dirleton (Con)]

My Lords, all relocated individuals will receive protection appropriate to them and assistance according to their needs, including, where necessary, referral to specialist services to protect their welfare. Furthermore, it remains possible for an individual to raise a claim that their individual circumstances mean that Rwanda is not a safe country for them. Should such a claim succeed in demonstrating that serious, irreversible harm will result from removal to Rwanda, that removal will not take place. We expect such successful claims to be rare, bearing in mind the safety of Rwanda, which I have already set out in my response.

The United Kingdom and Rwanda will continue to work closely to make this partnership a success. I do not accept that individuals relocated to Rwanda would be at risk of torture or any other form of inhumane or degrading treatment. I assure the Committee that, under this Bill, decision-makers will already be able to consider compelling evidence relating specifically to a person’s individual circumstances. Should someone with particular vulnerability concerns be relocated to Rwanda, safeguarding processes will be in place.

That Rwanda cares deeply about refugees is amply demonstrated by its work with the UNHCR to accommodate some of the most vulnerable populations who have faced trauma, detention and violence. We are confident that those relocated under our partnership would be safe, as per the assurances negotiated in our legally binding treaty. I therefore invite the noble Lord to withdraw his amendment.

[Lord Anderson of Ipswich (CB)]

My Lords, it was once the practice of our courts to prevent the jury from dining until they had reached their verdict. Rising to my feet on the wrong side of 3.30 pm, it seems that this practice may live on, unreformed, in what we must get used to calling “the court of Parliament”. Your Lordships may feel that they have had enough food for thought in this debate and that it is time for sustenance of a different kind, so I shall be as brief as I can in response.

What a debate it has been—fully up to the standards of its predecessor earlier today. I will pick out a few of the highlights from the Back Benches. We had lessons from the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hoffmann, on precedent. It seems one has to go back to 1531 to find a precedent for this Bill. The moral I took from his tale was that it ended badly for both the cook and the Act.

We were reminded by the noble Baronesses, Lady Lister and Lady D’Souza, of the astonishing fact that the courts must not consider even a complaint of risk of torture in Rwanda or a country to which Rwanda might send somebody. As the noble Lord, Lord Cashman, and the noble Baroness, Lady Kennedy, reminded us, that is no theoretical possibility. What an illustration it is of the lengths to which this extraordinary provision goes. We also heard a political analysis from the noble and learned Lord, Lord Falconer—I suspect it was very astute, but it is well above my pay grade so I will say nothing more about it. The right reverend Prelates the Bishops of Bristol and Leeds wove together the legal, moral and even philosophical aspects of the issue, as did the noble Lord, Lord Scriven. We are grateful to them for that.

I will single out two speeches, both from the Conservative Benches. The first was from the noble Lord, Lord Clarke of Nottingham. I followed with great care everything the noble Lord said, not just in this debate but in the debates on the Illegal Migration Bill. It seems that he is one of the very few people, either in this House or outside it, who can vocalise the quite understandable unease engendered in fair-minded people in this country by the prospect of immigration generally, and particularly by the prospect of people—as they see it—coming in without respecting the rules. He combines that with an absolute conviction that we need to address that problem without sacrificing our core values. I am so grateful to him, once again, for that extraordinary speech. How on earth did he never become Prime Minister of this country? There will be political historians who know the answer to that.

The speech of the noble Lord, Lord Deben, is the other speech I will single out, because he made the link so persuasively between this Bill and the most insidious of the threats to our democracy: disregard for the truth and subjugation of the truth to political expedience.

As to the Minister’s speech, he made the argument that considering even a claim that someone would be exposed to torture would place, as he put it, excessive demands on the resources of the courts and stand in the way of relocating individuals. With great respect to the Minister, I found that extraordinary coming from the mouth of a lawyer. I have rarely heard such a formulation of the argument for administrative expedience.

He raised Clause 4(1), and I acknowledge that it makes provision for decisions based on “particular individual circumstances”. If you have compelling evidence relating specifically to your individual circumstances, you might receive some consideration, either by the decision-maker or the court. However, as the clause also says, if your ground is that the Republic of Rwanda is not a safe country in general, it does not work. As the noble and learned Lord, Lord Hoffman, reminded me sotto voce during the debate, it is apparently therefore a defence to a claim under Clause 4 that you are about to be exposed to torture, “Oh, don’t worry, plenty of other people will be exposed to torture as well, it’s nothing to do with your own particular individual circumstances—case dismissed”. It is extraordinary.

We should be grateful, I suppose, to hear the Minister say that our amendments and speeches are listened to and that his party does not dictate the reporting of the Sun. I am grateful for both of those things, and we look forward to seeing those welcome words reflected in actions. On that theme, it was good to see the Opposition Front Benches listening intently throughout. I have no doubt that we will be coming back to these issues on Report. It may be that, as the noble Lord, Lord Coaker, said, the Bill will not be blocked, but we have to get it right and we cannot legislate for nonsense.

I say to the Minister that we do not want to boil him alive—although it may sometimes feel a bit like that—but this Bill poisons the springs of our democracy and I very much hope that this Chamber at least of the court of Parliament will continue to say so. However, because it is the convention at this stage, I beg leave to withdraw my amendment.

Amendment 19 withdrawn.

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[Baroness Lawlor (Con)]

My Lords, I have found this group of amendments very interesting and I am grateful to the noble Lord, Lord Kirkhope, for introducing it. But there has been a liberal use of certain concepts in the debate that I would like to comment on. We have heard a great deal about parliamentary sovereignty and history, including the history of the party on whose Benches I have the honour to sit.

The Conservative Party is a very broad church; it is no more the party of my noble friend Lord Hailsham than the great party opposite is the party of Mr Corbyn. These are great parties because, from time to time, they catch the hem of history as she passes by. On this occasion, I suggest that it is well worth listening to the Front Bench of this party, with its great electoral mandate, to do what is necessary to control these borders. I have no doubt that the party opposite will catch that hem sometime, but on this matter it is with our Front Bench.

[Lord Anderson of Ipswich (CB)]

My Lords, I am afraid that this will be a more prosaic and lawyerly contribution than the two we have just heard, but at least I will keep it short. When I first read the title of Clause 3, I did not appreciate quite how radical and unprecedented it is. I thought it right to bring that to the attention of the Committee, because I sit on the Constitution Committee with the noble and learned Lord, Lord Falconer, and others, and it certainly preoccupied us there. It is true that the Government have recently acquired what has been called a habit of seeking to disapply the strong duty of interpretation in Section 3 of the Human Rights Act. We saw that in the Illegal Migration Act 2023 and we see it in the Victims and Prisoners Bill. Had Mr Raab’s Bill of Rights Bill been brought forward, we would have seen a general disapplication of Section 3 across the board.

When we came to look at this in the Constitution Committee, we noticed the ways in which Clause 3 goes beyond even these precedents. It disapplies Section 3 but also Section 2 and Sections 6 to 9; I believe I am right in saying that neither of those things has ever been done before. Furthermore, those novel disapplications apply more widely than just to this Bill. Clause 3(3) states that Section 2 does not apply to Rwanda safe country determinations

“under any provision of, or made under, the Immigration Acts”.

Thirteen such Acts are listed by the Constitution Committee in a footnote. Clause 3(5) clarifies that Sections 6 to 9 of the Human Rights Act do not apply to sections of the Illegal Migration Act 2023 in relation to the assessment of whether removal to Rwanda could give rise to serious and irreversible harm.

Of course, the noble Lord, Lord Murray, is right that there was a world before the Human Rights Act—a less satisfactory world, I would say, in terms of human rights protection. What all this means in practice is that decision-makers and courts making decisions in relation to the safety of Rwanda, save in an application for a declaration of incompatibility, are instructed to ignore what the ECHR has to say about one of the most important of human rights, perhaps the most important of all—the right not to be subject to torture or inhuman and degrading treatment—and to ignore it, furthermore, in relation to one group only: the particularly vulnerable group of asylum seekers. That puts added weight on Strasbourg, as the noble Baroness, Lady Kennedy, said, as a backstop. That backstop is itself weakened, as we will see when we come on to Clause 5.

As a unanimous Constitution Committee said in our usual moderate terms:

“This is of considerable constitutional concern”—


I pause to note that the four Conservative members of that committee signed up to that formulation. We also invited the House

“to consider the potential consequences of undermining the universal application of human rights”.

For my part, I consider that this is an unhappy and dangerous road to go down.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Garnier (Con)]

My Lords, I briefly want to follow my noble friend Lord Hailsham in his remarks. Had he been the presider in a three-person court, I would have been very happy to say that, having heard his speech, I had nothing else to add. However, since we are here, your Lordships have the disadvantage of hearing what I have to say. Like my noble friend Lord Howard of Lympne and my noble friend Lady Helic, I regret not being present at Second Reading and apologise, but I have read the Hansard of the debate.

I am always reluctant to disagree with my noble friend Lord Howard, but he took too narrow an approach to the questions before us. I use Clause 1(2)(b), which is the subject my noble friend Lord Hailsham attacks, as a hanger on which to make a few remarks. I think, if I understood him correctly, that my noble friend Lord Howard said that Parliament can essentially do what it likes, and of course he is perfectly right. Parliament can be as foolish as it likes. It can pass a law saying that all dogs are cats, but that does not make all dogs cats. It can pass a law saying that Rwanda is a safe country, but that does not make it a safe country. In addition—this is where I agree with my noble friend Lord Hailsham—it is for the Executive to advance their policy, whether it is a good policy or a bad one. It is for the Government to say that it is their policy that Rwanda is a safe country to which to send failed asylum seekers. If the Government then wish to have their view tested by Parliament, again, they can go ahead and do it.

Therefore, what the Government are proposing as a matter of policy is not a constitutional outrage, but the way in which they are writing it down in Clause 1(2)(b) is, if I may respectfully say so, just plain silly. It is worse to be silly than it is to be guilty of a constitutional outrage, and this is not a constitutional outrage but just plain silly.

Ridicule is a more powerful weapon than the constitutional and legal arguments of any number of lawyers. As the noble Baroness, Lady Chakrabarti, advances in one of her amendments, it would be helpful to have a UNHCR opinion on the safety or otherwise of Rwanda. However, I have a feeling that exporting government policy to the UNHCR is not a good idea. It would be helpful to have that opinion, but it is not essential. The Government must stand on their own feet, bring their policy to Parliament and have it tested. It will survive or not on the merits of the facts. The assessment of whether Rwanda is a safe country must be for the Government to consider and for Parliament to agree; we as a bicameral parliamentary body are not equipped to reach those sorts of conclusions. We can agree or disagree with the Government, but we are not equipped in a presidium to reach a conclusion on whether the Republic of Rwanda is a safe country as a matter of fact.

I do not wish to undermine or underestimate the hugely difficult political problem that the Government face with illegal immigration and the making of unsound asylum applications. Nor do I wish to undermine their genuine and very proper decision and policy to stop the boats. However, if we are to stop the boats, and if we are to reduce the amount of illegal immigration and bogus asylum applications, the Government would go a long way if they had the confidence of their own convictions and allowed Clause 1(2)(b) to say that that the Bill gives effect to the politically expedient policy of the Government that the Republic of Rwanda is safe, rather than trying to shift the responsibility for that opinion on to Parliament. Parliament may come to agree with it, but the initial policy is one for government. To that extent I wholly agree with my noble friend Lord Hailsham.

[Lord Anderson of Ipswich (CB)]

I am another supporter of Amendment 3. Clause 1 is an example of the current vogue for starting Bills not with operative provisions but with preambular statements of the obvious, a custom which is always irritating but normally harmless. However, there is harm, not just silliness, in Clause 1(2)(b) with its rather grand invocation of

“the judgement of Parliament that the Republic of Rwanda is a safe country”,

a judgment for all time, apparently, that there is no provision to revisit or change. That invocation is unnecessary and contrary to principle. It is unnecessary because there are other ways for Rwanda to be declared or deemed safe. The Secretary of State could be entrusted with the decision or, if it really is necessary for Parliament to take it, there could at least be a power for the Secretary of State to amend it in the light of changed conditions, as was the case with Section 75 of the Illegal Migration Act 2023.

It is contrary to principle because it requires us to come to a judgment on a fact-specific life-and-death matter on which, frankly, we are ill equipped to adjudicate. Of course, this is not the first time that such a thing has happen. It was tried in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, when the countries of the European Economic Area—all signatories to the ECHR—were deemed, beyond rebuttal, to be safe. That experiment, a requirement of European Union law, was not a successful one. Its unwieldiness was demonstrated in the case of Nasseri. The Judicial Committee of the House of Lords dismissed a challenge to the safety of Greece but, through the noble and learned Lord, Lord Hoffmann, whom I am delighted to see in his place, indicated that the courts might have to issue a declaration of incompatibility if the deeming provision was contradicted by the evidence. The issue was sensibly addressed in the Nationality and Borders Act 2022 by transforming the irrebuttable presumption into a rebuttable one.

--- Later in debate ---

As I said at the beginning, my four amendments are all part of a package, and they are designed to correct the wholly inaccurate and, frankly, sloppy use of “is”, which should never have been in the clause in the first place if it is going to be a declaration of what our judgment is. I suggest that my words are far better suited to the judgment that the House is being asked to make and to put it into practice. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I cannot of course surpass the noble and learned Lord, Lord Hope, in quality but I can at least claim the advantage in quantity: I have seven amendments in this group to his four.

We discussed in the first group of amendments why Parliament is ill equipped to make the fact-specific and time-specific judgment asked of it by the Bill—that Rwanda is a safe country. I suppose that on Wednesday we will look at how this difficulty is compounded by restrictions on access to the courts, which is the most troublesome aspect of the Bill.

The amendments in this group do not provide answers to either of those concerns of constitutional principle. Instead, and very much as a second-best option, at least as far as I am concerned, they accept the proposition that Parliament should be the decision-maker and seek to make something workable out of it. The past few hours have surely served as a warning, following the similar warning delivered by the International Agreements Committee at the end of last year, that this House could not, as the noble and learned Lord put it, in all conscience sign off now or in the near future on the proposition that Rwanda is a safe country. The Minister came very close in the last debate to admitting the obvious—that this is at best a work in progress. If he is as sensible as I think he is, he should be very grateful for the olive branch that is Amendment 6 in the name of the noble and learned Lord, Lord Hope.

We turn to the question of what Parliament would need in order to make its judgment—the letter promised to the noble Lord, Lord Scriven, will be a welcome start, but it could not of course be enough—and how to ensure that this judgment can be revisited over time. My Amendments 15, 16, 77, 83, 88, 89 and 92 in this group, on which I am grateful for the assistance of the Law Society of England and Wales, are put forward in that spirit of slightly grubby compromise.

Amendment 15 provides for an independent reviewer to review the implementation and operation of the Rwanda treaty and report on it, initially at three-month intervals and thereafter annually. The objective is to produce an impartial report which Parliament can use to come to its own view. I am indebted for that idea to the noble Lord, Lord Carlile, a former independent reviewer himself, who signed the amendment but unfortunately cannot be here today. I accept that there are bodies other than an independent reviewer which could give us the expert advice that we need to make the judgment required of us under Clause 1. It may not be realistic to expect the Government to accept the UNHCR or indeed the Joint Committee on Human Rights for that purpose. The noble and learned Lord, Lord Hope, suggests involving the independent monitoring committee established under the UK-Rwanda agreement. There is a good deal of logic in that and it might be a satisfactory solution, so long as its reports are published in full and without interference by the joint committee—the body made up of officials from the two Governments and hence anything but independent—to which the monitoring committee, under the scheme of the treaty, reports. For that reason I see attraction in the approach of the noble Lord, Lord Coaker, in his Amendments 64 and 65, which cut out the middleman and require the monitoring committee to report directly to Parliament.

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[Baroness Meyer (Con)]

My Lords, I will speak against Amendments 9, 10 and possibly 13. I declare that I am a member of the Joint Committee on Human Rights but, personally, I did not agree to the full report. Like the noble Baroness, Jones of Moulsecoomb, who is not in her seat, I have to say that I am not a lawyer, but I am a woman and therefore I am a pragmatic person.

The one thing about this Bill is that everybody criticises it, but nobody gives us an answer on how to deal with what is a huge problem. As a pragmatic person from the outside, I see it as a totally political discussion rather than people getting together to try to find a solution. The problem is that there is no silver bullet solution to regaining control of our borders, dealing with immigration and how to deal with all those people dying coming into the United Kingdom.

As I see it, the Strasbourg court states that members have an obligation to comply with interim measures, but it does not say anywhere that they are compelled to do so. Therefore, the argument that Parliament will undermine the rule of law by authorising Ministers to decide whether to comply with Rule 39 measures, is incorrect.

The other argument advanced by people opposing the Bill is that our reputation across the world will be damaged, but this is not a proven belief. It is unsubstantiated. The reality is that the whole international migration system has got totally out of control. Our Government are taking decisive actions to protect our country’s border, strengthen our national security, stop the appalling trade and, ultimately, avoid many unnecessary deaths.

Is not the primary duty of any Government to keep their citizens safe and the country secure? British citizens generally welcome migrants and value the importance of migration, but they are becoming more and more reticent at the idea of footing the bill, seeing the pressures on our NHS, schools and housing. This Bill is not anti-immigration but a pragmatic response to the urgent crisis. One cannot compare previous waves of immigration, such as those of the Jews and others who were forced to leave their country and were limited in their numbers. Faced with the scale and cost of the current migration into the United Kingdom, doing nothing is not an answer.

I realise that this Bill is not perfect, but it is a first step. If we do nothing, there will be political consequences, as the noble Baroness pointed out earlier, and we can see that in the rise of populism and anti-immigration movements in the rest of Europe. This is why I object to these amendments; they will strip away parliamentary authority to decide not to comply with the Rule 39 interim measures and therefore go against the whole idea of this Bill.

[Lord Anderson of Ipswich (CB)]

I am prompted to intervene by Amendment 80, so ably introduced by the noble Lord, Lord Dodds. Although I do not support that amendment, I think that he has raised a very significant issue. He referred to Article 2 of the Northern Ireland protocol, as amended by the Windsor Framework, and to the principle of non-diminution of rights. The Northern Ireland Human Rights Commission, as he knows, has a statutory duty under the Northern Ireland Act 1998 to monitor the implementation of Article 2 to ensure that there is no diminution of rights.

As the Northern Ireland Human Rights Commission explains in its advice on the Rwanda Bill, referred to in the Constitution Committee’s report last week—and I declare an interest as a member of that committee—the rights not to be diminished include the EU procedures directive. That requires, among other things, by Article 27, that a third country can be considered safe only where the authorities are satisfied that key human rights principles will be respected. The procedures directive cannot be satisfied by a deeming provision; that is not how EU law works. It requires decision-makers to be untrammelled by legal fictions, and it requires convincing evidence that third countries are safe in practice. So there would appear to be a clear mismatch between what the Bill says and what the procedures directive preserved in Northern Ireland says.

My understanding is—although I submit to noble Lords from Northern Ireland on the detail of this—that this by no means a theoretical question. Official statistics do not provide an accurate picture of the extent of human trafficking on the island of Ireland, but the Northern Ireland refugee statistics for December 2023 record that there were 3,220 people receiving asylum support in Northern Ireland, and they were eligible for that because they were destitute on arrival.

To echo the call from the noble Lord, Lord Dodds, for transparency and openness in this matter, my questions to the Minister are as follows. Does he agree with the Northern Ireland Human Rights Commission report, and in particular its conclusion that Clauses 1 and 2 of the Bill are contrary to the principle of non-diminution of rights under Article 2 of the Northern Ireland protocol? When he responds to the noble Lord, Lord Dodds, on his Amendment 80, would he also explain how, consistently with the Northern Ireland protocol, this Bill can apply in Northern Ireland at all?

[Lord Murray of Blidworth (Con)]

My Lords, I shall speak to Amendments 9 and 13. I obviously have the greatest respect for my noble friend Lord Hailsham and the noble Baroness, Lady Chakrabarti, but let us look at the two subsections whose removal they called for at the beginning of the debate. Clause 1(4) says:

“It is recognised that … the Parliament of the United Kingdom is sovereign, and … the validity of an Act is unaffected by international law”,


and Clause 1(6) defines what the term “international law” means. There is nothing at all controversial in either of these clauses: indeed, Clause 1(4) is a classic statement of the legal position. I am afraid that I find it frankly bizarre for speeches to be made in this Committee expressing outrage that the Government have had the temerity to put them into Clause 1, as though they were dark secrets to be discussed only among lawyers in quiet corners of the Inns of Court. It is simply a frank statement and it has every place in Clause 1, where it will help the courts interpret the provisions of the Bill. Indeed, one can see that the interpretation provision at the end of the Bill refers back to Clause 1(6). For those reasons, I oppose the amendments proposed by my noble friend.

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[Lord Anderson of Ipswich (CB)]

I want to be clear. I referred to the provision of the procedures directive which requires a case-by-case decision on whether a third country is safe. I contrasted that with Clause 2(1) of the Bill, which says that:

“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”.


Is the Minister saying that there is no difference between those provisions, or is he accepting there has been a diminution of rights under the procedures directive and saying that it does not matter? If that is case, can he explain why it does not matter?

[Lord Stewart of Dirleton (Con)]

My Lords, I do not wish to enter into a matter that lies outwith my department and sphere of responsibility at this hour. With the noble Lord’s permission, we shall write.

Having offered those reassurances to the unionist Benches, I offer this conclusion. We have devised a solution that is innovative and within the framework of international law. It is a long-term solution that addresses the concerns set out in the Supreme Court judgment and ensures that this policy can go ahead, paving the way, as I said earlier, for other countries to look at similar solutions. I invite my noble friend to withdraw his amendment.

Imprisonment for Public Protection Scheme

Lord Anderson of Ipswich Excerpts

Thursday 13th October 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I signed up for this debate for two reasons: a nagging discomfort about the handful of IPP sentences that I felt myself obliged to impose—not on the most serious criminals—as a Recorder of the Crown Court, prior to 2012; and respect for and solidarity with those noble and learned Lords who have done battle on this subject for so many years.

I simply add two stray observations. First, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood has pointed out, the Justice Committee’s report noted that the IPP sentence is unusual in that it detains individuals in prison on the basis of what they might do, rather than on the basis of what they have done. It occurred to me that similar comments are often made about the sentencing of terrorists—the so-called precursor offences—and indeed about the effective house arrest of terrorist suspects by executive measures, such as TPIMs. The pre-emptive aspect of counterterrorism law rightly results in particularly anxious public and parliamentary scrutiny. The same uncertainty that contributes, according to this report, to the high levels of self-harm and suicide of IPP prisoners was something this House had well in mind when it refused to allow TPIMs to become indefinite—a position to which the Government eventually agreed in the Counter-Terrorism and Sentencing Act 2021.

While we can get it broadly right where terrorists are concerned, it is depressing that we still have not corrected a manifest injustice for those convicted of ordinary criminal offences; an injustice that was recognised as such not only by the noble Lord, Lord Blunkett, but by Michael Gove and Liz Truss when they were Lord Chancellors in the middle of the last decade. It is an injustice that, as the noble and learned Lord, Lord Thomas, said, may even make the subjects of that injustice more dangerous.

Secondly, the committee notes that it was the decision to curtail the usual discretion of judges to determine the most appropriate sentence for each offender that led to the initial proliferation of the IPP sentence. There is there, surely, a cautionary tale. We see in this place repeated proposals for remote control of judicial discretion, whether by minimum sentences in criminal cases or by seeking to influence the grant of remedies in civil cases—I think of the Environment Act 2021 and, rather more happily, of the Judicial Review and Courts Act 2022. Such attempts are liable to cause more problems than they solve because of that most foundational law of all, the law of unintended consequences. That is certainly what we have seen with IPPs.

I strongly support the Justice Committee’s recommendation of a comprehensive resentencing exercise for the reasons that it gives and look forward to finding out whether the Minister is able to do so as well.

Judicial Review and Courts Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

On legal aid at inquests, I look forward to hearing the amendment to be moved by the noble Lord, Lord Ponsonby. I do not believe, as has been advanced by the Government, the proposition that there is a distinction between inquisitorial and adversarial processes which justifies the inequality of arms that is inherent in a system that allows rich and powerful bodies, public and private, to outspend and outdo bereaved families at inquests. In our view, legal aid exceptional case funding does not meet that case. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, the presumption in Clause 1 was a curious and misshapen thing—so much so that I did wonder when moving against it whether it was always intended to be the hunk of meat that would be thrown off the back of a sledge to distract the ravening wolves. But these things do not dispose of themselves and I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, to the Justice Minister, James Cartlidge, who is also my MP, and, before them, to the noble Lord, Lord Wolfson, for the good grace, courtesy and good sense with which they agreed to put it out of its misery.

I do not share the principled objection of the noble Lord, Lord Marks, to prospective-only quashing orders. The noble and learned Lord, Lord Brown, wrote about this in the Times and I respectfully endorse what he had to say. But I am pleased that the noble Lord agrees at least that these prospective-only orders, whose place in our law is confirmed by Clause 1, are at least mitigated by the removal of the presumption.

[Lord Pannick (CB)]

My Lords, may I pay tribute to the noble Lord, Lord Wolfson of Tredegar, on his resignation as Minister of Justice? He played a significant role behind the scenes in ensuring that the Government have made the welcome concession of agreeing to the amendment from the noble Lord, Lord Anderson, to remove the presumption. The noble Lord’s resignation has confirmed, if there were any doubt, his commitment to the rule of law. His resignation will be welcomed only by his senior clerk at One Essex Court Chambers in the Temple as he returns to the commercial Bar, as well as to the Back Benches.

On topics as diverse as the Cart jurisdiction and breastfeeding, the noble Lord’s contribution as a Minister was marked by his hard work, his eloquence, his ability to respond constructively to the concerns of other noble Lords, and his wit. He is an enormous loss to the Front Bench and I very much look forward to his Back-Bench contributions.

As I said in Committee, echoing the words of the noble Baroness, Lady Jones of Moulsecoomb, the only thing to be said in favour of Part 1 of this Bill, on judicial review, is that it could have been a great deal worse. I cannot work up any greater enthusiasm at this stage for these provisions. The Bill, in Part 1 on judicial review, is not quite as much of a damp squib as the efforts of a former Lord Chancellor, Chris Grayling, in his infamous Social Action, Responsibility and Heroism Act 2015—but it is a close call.

Counter-Terrorism and Sentencing Bill

Lord Anderson of Ipswich Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

The noble Lord, Lord Parkinson, said that in practice, the residence measure would likely—I stress likely—not exceed 16 hours a day without constituting an unlawful deprivation of liberty. We do not find “not likely” a reassurance, so this is also a part of the package on which we intend to divide the House.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, nostalgia is the theme of the Government’s amendments in this group, because each of them takes us back to the wording of the original TPIM Act 2011. I am nostalgic enough for those days to have put my name to both amendments.

Amendment 14 on the standard of proof, in the name of the Minister, is a tribute to those noble Lords from all parts of the House who spoke so compellingly to the similar amendment that I had the privilege of moving in Committee. They include the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer, each of whom advised—rightly as it turned out—that my amendment did more than was necessary to accommodate the Government’s legitimate concerns. Gift horses should not be looked in the mouth, still less kicked in the teeth. Ministers have listened and have acted decisively. I thank them for that and welcome the retention of a standard of proof, whether expressed as reasonable belief or as balance of probabilities—between which I see no real distinction in practice—that has by the Government’s own account caused no unnecessary difficulties and exposed us to no avoidable danger over the past 10 years.

With a little more hesitation, I put my name also to the Government’s Amendment 22. This reinstates the original requirement in Section 20 of the TPIM Act 2011 for an annual review of the operation of the Act by the independent reviewer, which in turn succeeded a similar requirement in relation to control orders. Section 20 was amended in 2015 to allow the independent reviewer an increased degree of discretion as to the timing of those reviews. That was not unwelcome to the independent reviewer at the time—I declare an interest—who had, as I recall, been given a number of commissions additional to his normal annual duties. However, I understand that the current independent reviewer is content, and on that basis I support Amendment 22 on two conditions. The first is that the independent reviewer should have the necessary resources to perform his various important tasks with the frequency that will now be required and with the promptness that is so desirable. The second condition is an acceptance that, useful as these reports are to those of us concerned with policy in this area, they can be no possible substitute for the scrutiny of individual cases on the evidence that is properly the function of the TPIM review group, to which the Minister alluded, and of the courts.

However, this group is concerned with more than nostalgia. TPIMs have moved on since 2011. These notably harsh measures are harsher than they were then and will soon become harsher still. The toughest measure of all, relocation, with or without one’s family, to a distant town or city—colourfully described by Liberty as “internal exile” and removed by the 2011 Act —was restored on my recommendation in 2015. A range of other new obligations has been added to the list of available measures. Assuming that Clause 37 goes through, notwithstanding Amendment 18, TPIM subjects will for the first time be able to be confined to their houses for substantial parts of the day, while no doubt being tagged, limited in their social contacts and obliged to report to the police station during the periods that they are allowed out. That is rather a different proposition from observing a night-time curfew only in one’s home borough, which is how things were in 2011.

The cumulative effect of numerous measures under a TPIM, even under the existing law, was explained in this way by LF—a TPIM subject, anonymised like the others into a pair of initials—in recent evidence to the High Court. That evidence was summarised by Mrs Justice Farbey in the judgment handed down on 10 February this year:

“He says that he felt as if he was being asked to do something which is not humanly possible: to fulfil multiple and often changing obligations over possibly a two-year period without making one single mistake. He felt as if he was in a trap: if he were to breach any of the TPIM, he would be convicted and imprisoned. The TPIM would then be re-imposed, perhaps with even more requirements, and he would once again be at risk of breaching them.”


For, of course, while the basis for a TPIM can include conduct falling short of the criminal threshold—support, assistance and encouragement more broadly understood than in the criminal law—even the most trivial breach of a curfew or reporting requirement is a criminal offence for which the maximum penalty is five years in prison.

That is the context in which we have to consider the remaining amendments, Amendments 16 and 17. Your Lordships have three options, and I emphasise that none of them is a liberalising option. The Liberal Democrats, with their Amendment 17, offer a continuation of the status quo: a two-year maximum limit in the absence of new intelligence, as initially proposed by my predecessor, the noble Lord, Lord Carlile, save in exceptional cases, and as supported by the current independent reviewer.

The Government, with Clause 35, offer an unlimited extension, which would allow radicalisers in particular—whom the Government told the independent reviewer are

“the likely targets of enduring TPIMs”—

quite simply to endure forever, even if the intensive monitoring of the subject turns up not a single scrap of evidence or intelligence suggestive of re-engagement.

My Amendment 16 takes the middle path. It recognises that, as I reported in 2013, it is tempting to wish for longer than two years in the most serious cases. However, it recognises also that TPIMs must not be allowed to become a more attractive option than prosecution, that the authorities must be incentivised to work on an exit strategy—and not simply to warehouse TPIM subjects—and that in a free country, our fellow citizens, however odious we might consider them, cannot be indefinitely confined by the state in the absence of any attempt to put them on trial.

It is said that TPIMs of indefinite duration will in reality be no such thing because Ministers will volunteer their discontinuance and because the courts can be counted on to intervene if they do not. Yet, with respect, the evidence casts doubt on both propositions. I understand from the independent reviewer, who on his own initiative asked officials about this, that every TPIM imposed since 2015, unless revoked for extraneous reasons, such as imprisonment or a court order, has been extended by the Secretary of State on the one and only occasion that this is normally permitted under the existing law. That is hardly surprising. If a released TPIM subject were subsequently to reoffend, who in active politics would want to be the Home Secretary who had chosen voluntarily to release him from constraint?

As to court proceedings, it is not just that closed material proceedings make them slow and cumbersome, that they do not allow the subject to instruct his special advocate or to call evidence on the full national security case against him, or that the Home Secretary asks for and is generally accorded—as her predecessor was by the Supreme Court last week in the Shamima Begum case—a high degree of judicial deference for her decisions relating to national security. There is also, most regrettably, a funding and hence an access to justice issue. I am again grateful to the independent reviewer for the information that of the handful of current TPIM subjects, no fewer than three—JD, HB and HC—sought funding from the Legal Aid Agency to enable them to be represented in review hearings but were turned down, after which they requested the court to discontinue those review hearings.

It is said that indefinite TPIMs will keep us safer. On that, I first invite noble Lords to reflect on the severity of my own amendment. It would mean that the Secretary of State’s initial belief that a subject has probably been involved in terrorism is enough to justify four years on a TPIM, with every move tagged and every conversation potentially monitored. If further intelligence emerges of involvement in terrorism, at any stage during those four years, under my amendment a fresh TPIM could still be imposed, again extendable up to a further four-year limit—and so on, ad infinitum. That, surely, is draconian enough.

Would we be kept safer by the indefinite warehousing of TPIM subjects beyond the four-year mark, without the need for intelligence derived from what is, after all, not just a terrorism prevention measure but a terrorism investigation measure? Such people could readily become martyrs to a certain audience as, in a small way, one or two control order subjects did. As my noble and learned friend Lord Thomas of Cwmgiedd said in Committee, by reference to the IPP regime, of which he has great experience,

“indefinite detention often makes someone more dangerous because you take away hope.”—[Official Report, 9/2/21; col. 273.]

This country has a long tradition of combining high levels of national security with a vigorous defence of individual liberty. We never imposed indefinite house arrest, relocation and other similar restrictions on those who preached communist revolution, and we have never imposed TPIMs, although we have the power to do it, on radicalisers of the extreme right wing or the Irish republican persuasion. Nor are we where we were in 2005, when it was widely feared that al-Qaeda-directed plots would take tens of thousands of innocent British lives. Existing measures have helped ensure that the total death toll from terrorism this century, in Great Britain, stands at less than 100. To introduce indefinite executive detention in response to this miserable bunch of ideologues would, I suggest, be a signal not of strength but of what the terrorists most want to see from us: fear and overreaction.

National security law must be more than a series of proportionality assessments performed by the Executive and observed by respectful courts. Something more is needed—checks and not just balances—or how else can Parliament offer guidance on where the limits should be? Your Lordships’ House has already this year greatly improved the Covert Human Intelligence Sources (Criminal Conduct) Bill, whose original version suggested that this important truth may have been forgotten. This Bill, on a similar theme, was described by the independent reviewer as

“conspicuous for its lack of safeguards.”

Amendment 16 extends the reach of these always controversial TPIM measures, but it at least retains a tangible check on the executive power to constrain—a power of which the TPIM is the strongest example known to our law. I hope that the good sense of this amendment will commend it to your Lordships. With that in mind, my intention is to test the opinion of the House.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I feel much more educated than I did half an hour ago. Today, I found myself not only supporting but signing a government amendment, which is a first for me—what a pleasure. I was in the prestigious company of two QCs and a privy counsellor. I will support any and all amendments that are moved. I find the four-year limit a little tougher to accept than that of two years, but anything that is not indefinite is an improvement.

In normal times, this issue would get much more coverage, but Brexit, Covid and everything else are taking the public’s attention away from these issues. Anything that would implement unending government surveillance and intrusion on someone’s life is, frankly, terrifying.

The amendments of the noble Lord, Lord Paddick, to remove various clauses, and those of the noble Lord, Lord Anderson, would significantly improve this Bill. I hope that noble Lords who have been involved in this Bill will continue to work with us. They have shown that they are prepared to improve the Bill and I think that further improvements are possible. I hope that they are listening and will accept these amendments.

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Moved by

[Lord Anderson of Ipswich]

16: Clause 35, page 29, line 28, leave out “one or more” and insert “up to three”
Member’s explanatory statement
This amendment would impose a four-year limit for TPIM notices.

[Lord Anderson of Ipswich (CB) [V]]

I beg to move.

--- Later in debate ---

I anticipate withdrawing Amendment 19 at the end of the debate; I will not move Amendment 20, but we will move Amendment 21 when that point in the proceedings is reached. Let us see what the Government have to say.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, the noble Baroness, Lady Hamwee, appears to be right that the legislation in its current form does not place express limits on the use of information obtained from a polygraph for the purpose of extending a TPIM, yet my enthusiasm for Amendment 20 is limited. The reality is that TPIMs can be made and extended on the basis of a wide range of intelligence fragments, some of which may be little more than straws in the wind. It may none the less be important to take such matters into account. I think back to the Manchester Arena bomb and the ambiguous and potentially unreliable intelligence that, as I reported at the time, might, if it had been interpreted in a different way, have resulted in some sort of pre-emptive action.

An intelligence picture is typically a complex mosaic of multiple indications and assessments, of which polygraph material, depending on the circumstances, will not necessarily be the least reliable component. While it seems to me both unlikely and undesirable that a TPIM would ever be extended predominantly on the basis of polygraph material, I am wary of Parliament seeking to dictate the relative weight that is to be given to different sources of intelligence. The Executive and the courts are the bodies with expertise in this area, and I suspect that we should leave it to them.

I look forward to hearing what the Minister has to say about Amendment 19, which seems not without merit.

[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Hamwee has explained Amendments 19 and 20 to the House, and it would serve little purpose to repeat that as we will not be dividing the House on them.

As my noble friend has said, compulsory polygraph tests for those convicted on licence from prison are one thing, but such tests for those not convicted of any offence, who have a right to silence when being questioned, is quite another. It is a long-established principle that a suspect in criminal proceedings should be protected from any adverse consequences of remaining silent. Clause 38 allows the Secretary of State to impose a requirement for an individual subject to a TPIM to participate in polygraph sessions and to comply with instructions given to the individual by the polygraph operator. Although any statement made by the individual while participating in the polygraph session cannot be used against them in any proceedings for an offence, a failure to answer questions could be taken as contravening a measure specified in a TPIM notice—that is, to comply with the instructions of the polygraph operator, so, in this case, the instruction to answer questions. Remaining silent during a polygraph session could therefore be an offence under Section 23 of the Terrorism Prevention and Investigation Measures Act 2011, for which the individual is liable on conviction to imprisonment for a term not exceeding five years.

If the person is convicted of a terrorism offence and is on licence and subject to a TPIM—unlikely but possible—it would be possible for them to be subjected to polygraph tests under Clause 32 of this Bill, and a failure to answer questions in those circumstances would be a breach of the licence. While we have reservations about that, we do not object to it being part of the Bill. However, if the person is not convicted and is subject to a TPIM, they have the right to silence and to be protected from any adverse consequences of remaining silent. Potentially being imprisoned for five years for failing to answer questions during a polygraph session is an adverse consequence, and we therefore intend to test the opinion of the House on whether Clause 38 should be part of the Bill.

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[Lord Paddick (LD) [V]]

My Lords, I move Amendment 23 in my name and that of my noble friend Lady Hamwee. This House voted for there to be a deadline for the publication of an independent review of the Government’s Prevent strategy in what became Section 20 of the Counter-Terrorism and Border Security Act 2019. In this Bill, the Government seek to remove any deadline for the publication of this review. In Committee, the Minister said that the Government hoped that the report would be published in the autumn of this year and that he hoped to get confirmation of this from the newly appointed independent reviewer of Prevent. On the basis of the estimate given by the Government in Committee, our Amendment 23 seeks to reinstate the deadline but with a generous margin of publication by the end of the calendar year. I beg to move.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, there seems to be a recurring issue with the timeliness of independent reviews in the field of national security. The chief problem as I observe it relates not to the speed with which independent reviewers do their job but to the speed with which those reviews are commissioned on the one hand, and the speed with which reports are published and laid before Parliament on the other.

As to delays in commissioning, in addition to the remarkably long time that it has taken to replace my noble friend Lord Carlile as the independent reviewer of Prevent, I note that it was only on 25 February this year that the long-awaited review was announced of closed material procedures under the Justice and Security Act 2013. That review was required by Section 13 of that Act to be completed as soon as reasonably practicable after June 2018. Yet, despite regular inquiries by the indefatigable Angus McCullough QC and others, and at least one Written Question in my own name, it was commissioned only two and a half years after that point. That seems simply unacceptable.

On the second of those points, there is the pre-election saga of the Russia report of the Intelligence and Security Committee, on which I made my views clear at the time, and an occasionally elastic interpretation of the Secretary of State’s statutory duty to lay reports of the Independent Reviewer of Terrorism Legislation before Parliament “on receiving a report”.

In the Public Bill Committee on the original TPIM Bill in 2011, James Brokenshire, during his first stint as Security Minister, said on this subject:

“There is no desire to sit on reports. It would be foolish and inappropriate for Government to do so, particularly with a report from an independent reviewer … It is not our intention to sit on reports; that is not the practice. If it gives comfort to the Committee and to the public, reports received from the independent reviewer will be published on receipt or promptly—whatever the appropriate phrase is. That is what I expect to happen, and I would expect any successor of mine to take the same approach.”—[Official Report, Commons Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 253.]


Will the Minister take this opportunity to endorse the principled approach set out by James Brokenshire almost 10 years ago and apply it not only to reports of the Independent Reviewer of Terrorism Legislation but to the report of the independent reviewer of Prevent? If he can, he will go some way to setting my mind at rest not only on the subject matter of this amendment but more generally.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

I will add one last thought. The Investigatory Powers Commissioner has to make an annual report to the Prime Minister, and the Prime Minister has to publish that report and lay it before Parliament. So there is continuing annual oversight of this—something that has never happened on the same scale before. That is a very important addition.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, like the noble Lord, Lord King, whose experience I respect and whom it is a pleasure to follow, I have no objection in principle to the issue of criminal conduct authorisations by bodies, other than the police and agencies, that are engaged in the investigation of serious crime. That, I would suggest, should, however, be on three conditions: that those bodies have demonstrated a real need for that power; that they are properly trained to use it; and that there are sufficient safeguards against its unnecessary or heavy-handed use.

Before coming to those conditions, may I make two practical points in favour of granting these powers to those whose investigations make them necessary? First, if such bodies are already running CHIS, there is a strong argument for continuity of control. I have made in other contexts the point that the decision to issue a criminal conduct authorisation is very much part and parcel of the CHIS tasking exercise, and best taken in the knowledge that only prolonged contact can bring of the nature of the investigation and the personalities and risks involved. Yes, one could require the police to be brought in to grant the authorisation, but the involvement of a second authorising body risks a dilution of that experience and is no guarantee of better decision-making.

Secondly—this point arises from contact I have had with those whose job it is to inspect the use of the powers on the ground—it might be rash to assume that a request to the police to issue an authorisation on behalf of, let us say, the Food Standards Agency or the Gambling Commission would necessarily be allocated the resources or progressed with the urgency that might be required. That would be regrettable, but questions of priorities do arise when one organisation is asked, effectively, to do a favour for another.

Turning to my conditions, the first is that each of these bodies should have demonstrated a real need. I shall listen with great interest to the Minister, but I do understand the difficulties in explaining that sensitive topic in a public forum. Accordingly, it seems to me that this is one of the questions that might usefully be the subject of an independent classified review by some respected person such as the Independent Reviewer of Terrorism Legislation, whose conclusions could be presented to Parliament.

That is a procedure for which there are precedents in the national security field. The noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Russell of Liverpool, and I have each proposed it in previous debates on this Bill, and the noble and learned Lord, Lord Thomas, has written to Ministers about it in some detail. If, as I assume, this Bill may not reach Report stage until the new year, it may still not be too late for this to happen; perhaps the Minister could comment. Today’s offer of meetings with major users of the power is welcome, but not, I think, a substitute.

The second condition relates to training. There is plainly a need to mitigate any risk that bodies that use these powers only rarely will tend not to use them wisely, or in accordance with accepted current practice. So I assume that those designated as handlers, controllers and authorising officers in the other authorising bodies will be trained alongside their police equivalents. Perhaps the Minister will confirm that this is the case, and confirm also that they will not be excluded from elements of that training that could at least arguably be relevant to the exercise of their functions. This was an issue that I encountered in another context during my investigatory powers review A Question of Trust.

The third condition relates to safeguards. I have been left in no doubt by Ministers that the Government have set themselves firmly against prior independent authorisation, for reasons that I have myself described as understandable. In that context, I am grateful to the Minister for her indication last Tuesday that the Government are open to discussions on the concept of real-time notification of CCAs to judicial commissioners. The real-time element is crucial, because it is clear in this field that prevention of abuse, where possible, is always going to be easier than cure.

I hope that in the Minister’s response today, or at any rate as part of those welcome discussions, we will be assured that less frequent users, in particular, will be required where possible to pre-consult with a judicial commissioner. There is a precedent for this under the Investigatory Powers Act in the power to submit proposed novel or contentious uses of other covert powers to IPCO for guidance. Such a requirement would help ensure that any uncertainties are resolved, and that any authorisation that may subsequently be issued by those bodies is consistent with best practice.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 63, moved by the noble Lord, Lord Paddick, and other amendments in this group seek to draw attention to the range of organisations that will be given powers to grant criminal conduct authorisations to individuals involved in criminal conduct. There is a list of organisations on page 4 of the Bill, and I found it surprisingly long. Perhaps I just did not know how many organisations were involved in this activity.

Could the Minister tell the House how many organisations are currently involved in intelligence and providing authorisations after the event, and also set out for us why they in particular need those powers? Some colleagues have argued that these should be matters just for the police and the security services—that they should have the powers and other organisations should come to them for approval and authorisation. On the face of it, that could seem quite a sensible way forward.

For example, why do the Gambling Commission and the Environment Agency need these powers? There may well be very obvious and sensible reasons why they do, but it is important that those reasons are set out clearly. Initially, restricting the list could appear attractive, because these are serious powers, and we want to ensure that people are exercising them properly.

I think the noble Lord, Lord Cormack, expressed views held across the whole House about the concern here. We need to take on board, whatever the House decides in the end, that there is concern about the use of these powers, and they must only ever be used proportionately and by a minimum number of organisations.

My noble friend Lord Sikka drew the attention of the House to another point, and other noble Lords mentioned it as well. It is not due to this Minister, or to this or any other Government, but the risk that we run when we grant powers is that they are given to Governments of the future as well. Things can change. We might like the Minister who is in position today, or whoever has a particular position, but they will not always be in that position. We are granting powers to a potential range of Governments in future—and why are they necessary?

Then there is the whole question of statutory instruments. I have regularly attended debates on them, and it is quite frustrating the limited amount of power that we have as a Parliament, or as the House of Lords, to deal with them. There are many times when you want to vote them down, but you do not because you recognise that the fatal Motion is not often the way to do things. So you are limited as to what you can do—that is a fair point.

We need a very detailed response from the Minister, explaining why these organisations in particular need these powers, whether there are others, and why the Government need the power to extend that further under the limited provision of a statutory instrument, and not through primary legislation.

I accept the point that the noble Lord, Lord King of Bridgwater, makes: people need to be kept safe in this country and lots of organisations are doing very difficult and dangerous things. No one is against that. Equally, the noble Lord, Lord Anderson of Ipswich, made the point about the real need for training and safeguards. That seems sensible to me; if any organisation is to have these powers, you have to be confident that it will use them properly, proportionately and effectively.

I look forward to the Minister’s response. There are a number of areas to cover here for the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, this may look like a very long group, but it almost entirely concerns a couple of points, so I hope it need not detain your Lordships too long. Amendments 1, 2, 4, 10, 13 and 38 are probing. I appreciate the need for precision in legislation, which—I hope the drafters will not take this amiss—often means the wording can be a bit clunky. I would therefore be grateful for a detailed unpacking of two points on the wording.

First, I wondered whether

“criminal conduct in the course of … conduct”

is something to do with how Section 26 of the Regulation of Investigatory Powers Act 2000 is constructed. Section 26(1) applies to

“the conduct and use of covert human intelligence sources.”

Is there a concern that there is a need to provide for something different to that? Is there a concern that what is to be covered cannot be separated from that? For instance, there might be a need for separate authorisations. In other words, why not have a straight- forward authorisation of criminal conduct by a CHIS? It may be because it needs to be made clear that there is no wholesale authorisation of criminal conduct by a CHIS, but surely that would be only when they are acting as a CHIS. Would not the authorisation cover that? I would be grateful if the Minister could unpack that phrase for the Committee.

The second phrase is conduct “in connection with” the conduct of a CHIS. How closely connected must the second category be? I am particularly concerned to be clear whether this is to catch, or ensure that it does not catch—it occurs to me that “catch” may not be the best term here—the person giving an authorisation, the person to whom he reports and anyone overseeing that authorisation. I would be concerned if it applied to that person inciting or being an accessory to a crime, or conspiring. Would this not mean that someone is authorising himself? What is intended by this? I have omitted to welcome the Minister to what I assume is his first outing in a Committee; can he be clear about the position of those who in other situations—ordinary criminals, if you like—would be an accessory to, inciting or conspiring in a crime? Amendment 40 addresses the same point, although the phrase is conduct “in relation to” a CHIS.

Amendment 37 has been tabled to probe whether the authorisation can be retrospective, relating to past conduct. I note that Amendment 50 from the noble Lord, Lord Davies of Gower, which we will come to next week, would allow for retrospective authorisation, subject to criteria. I do not want to steal his thunder; no doubt he will talk about the operational realities which will sometimes make it very difficult to anticipate what will happen on the ground. If there is to be immunity for conduct which has been authorised ex post facto, the criteria and limitations will be very important. I beg to move Amendment 1.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for each of the probing amendments in this group. Most of them, as the noble Baroness has said, are directed at essentially the same point: the intended scope of criminal conduct authorisations. I echo her remarks in finding the phrases she identified less than clear.

For me, the underlying question is whether it is intended that the conduct of any person other than a CHIS should be entitled to the protection of a criminal conduct authorisation, and if so in what circumstances. Are we talking about protections from criminal and civil recourse for the CHIS handler, controller or authorising officer, or more generally for the public authority that employs them, or are we talking about the protection of other people who are neither a CHIS nor employed by the authorising authority? I hope the Minister will make the position clear and, if he does not favour the simpler formulations in these amendments, explain why.

Amendment 37 raises a slightly different issue. It suggests that an authorisation cannot be retrospective, which is surely right and was confirmed by the Solicitor-General at Second Reading in the other place when he said:

“The Bill does not seek to enable the retrospective granting of a criminal conduct authorisation”.— [Official Report, Commons, 5/10/20; col. 707.]


A close reading of the Bill confirms that, on balance, it does not provide for retrospective authorisations: the new Section 29B(6), for example, refers to what

“could reasonably be achieved by other conduct”,

not to what could reasonably have been achieved. However, this is indirect and intricate stuff; clarification in the Bill would be welcome, and this amendment provides it.

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[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Baroness, Lady Jones of Moulsecoomb, has withdrawn so I call the noble Lord, Lord Anderson of Ipswich.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, this group of amendments focuses on compensation for crimes committed pursuant to a criminal conduct authorisation. I suggest that the applicable principles should be these.

First, it would be unfair to expose undercover operatives to personal civil liability for doing something they were expressly authorised by a public authority to do, just as it is generally considered unfair and contrary to the public interest to prosecute them for that. This, despite my profound respect for the noble Lord, Lord Paddick, and for all his police experience is my problem with Amendment 6.

Secondly, some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation: not from the person who perpetrated the crime but from the authority which authorised it, or from the state more generally. So what should that means of compensation be?

The first and obvious route, already referred to by the noble and learned Lord, Lord Falconer of Thoroton —but not, I think, responded to by the Minister—is via the Criminal Injuries Compensation Authority and its equivalent in Northern Ireland. That is not expressly referred to in these amendments, but can the Minister confirm whether it is available to the victims of crime committed pursuant to criminal conduct authorisations under the scheme of the Bill and if not, why not?

The second possible route to compensation, suggested by Amendment 8, is for the CHIS who perpetrates a crime to be capable of being sued and then, if necessary, indemnified by the authorising authority. I see the attraction of that, but of course criminals are rarely perceived as having deep enough pockets to be worth suing. I can also see considerable practical difficulties in keeping their status as a CHIS secret once the indemnity comes into play. It was interesting to hear from the noble Baroness, Lady Massey of Darwen, that this amendment is based on an Australian model. It would be interesting to know how much that model is actually used.

The third possible route is by proceeding directly against the authorising authority in the Investigatory Powers Tribunal. Amendment 71 is designed to give effect to that, but I wonder whether it actually adds to what is already in RIPA. A new subsection (5)(g) is proposed for its Section 65, so as to include conduct authorised under new Section 29B. But new Section 29B will be in Part II of RIPA, which is already specified in Section 65(5)(d).

How would a person be made aware of the possibility of proceedings in the IPT? The Investigatory Powers Act 2016 already requires IPCO not only to inform a person of a serious error, where it is in the public interest to do so, but, by Section 231(6), to inform them of any right they may have to apply to the IPT. By Section 232, IPCO is required to give any necessary assistance to the IPT. So far so good, although I wonder how often, as a matter of practice, it will be considered by a judicial commissioner to be in the public interest to inform a person of a serious error of this kind. To do so will often risk blowing the cover of the CHIS, notwithstanding the fact that the IPT proceedings themselves are very secure.

In short, it seems to me that the Amendment 8 route could be created, and that the Amendment 71 route may already exist, but that both are likely to be hamstrung in practice by the requirements of keeping secret the existence and identity of a CHIS. That rather points up the advantages of ensuring that the Criminal Injuries Compensation Authority is available to the victims of crimes committed by undercover operatives in the same way as it is to the victims of other crimes. I hope the Minister will feel able to comment.

Finally and more generally, I make a procedural suggestion, following the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd, that a special committee be appointed to take evidence from the police and MI5 on matters considered too sensitive, perhaps, for the ears of the rest of us. I know the Minister is thinking about that proposal, but should it not meet with favour, an alternative might be to task the Independent Reviewer of Terrorism Legislation with investigating the position and reporting back. The current reviewer, Jonathan Hall QC, is highly expert in all matters relating to police law, not only counter- terrorism. He is widely respected for his impartiality and has, of course, the very highest security clearance. I recall, as independent reviewer, performing a similar function when the Bill that became the Justice and Security Act 2013 was going through Parliament, and though I cannot commit the independent reviewer, I should be happy to share that experience if others see merit in the idea.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be brief on this group—because I gave my views on the importance of removing both civil and criminal immunity in the earlier discussion—save to take the opportunity to wholly welcome the cogent, powerful and accessible report of the Joint Committee on Human Rights, and to congratulate my noble friends Lady Massey and Lord Dubs, as well as all the other members of that committee. The committee has been one of the greatest success stories coming from the Human Rights Act. Some once thought the Act would be just a recipe for litigation, and human rights would be just a box of lawyers’ tricks to wield in court, but the Joint Committee on Human Rights has been the missing ingredient that allows for human rights principles to be included in the consideration of legislation before it is even passed. I say this knowing that that the Minister will take that report incredibly seriously when he considers his approach to the next stage of the Bill.

On civil immunity, it is worth saying that, for a lot of victims, this is as important as criminal immunity. For a lot of innocent third parties, who may have lost property or even suffered grave injuries through no fault of their own, it is very important that there is the possibility of compensation. It may not be enough for it to be left to the CICA, although I will be interested in what the Minister advises. It would seem completely unconscionable for a state agent to be authorised to commit a crime, for an innocent citizen to suffer grave damage to property or person and for there to be no mechanism for them to have compensation. Further, the civil courts, when combined with investigative journalism, have been a place where a great many scandals and human rights violations of recent decades have been exposed, so “lawful for all purposes” is just as potentially worrying in the civil context as it is in relation to the criminal law.

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These judicial commissioners, who already exist, as I said, are well practised in making complex assessments of sensitive material in an independent, detached manner at short notice. We therefore reiterate that this recommendation—I here join with my noble friend Lord Dubs—is for scrutiny. We want to see amendments to the Bill that create judicial commissioners who should be mandatory for each CCA application. As my noble friend Lord Dubs said, there should be prior judicial authorisation. If this were introduced, there would be no need for the urgent procedure that my noble friend said could be a standby if necessary because, as I mentioned, there is a roster of these judges and there is always somebody available 24/7 to meet the demand of urgency. They are highly expert and capable of making quick decisions on sensitive, complex material. On this basis, I urge the Government to introduce this component into the Bill: greater scrutiny by a cohort of judges who already perform a role that is not dissimilar.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I shall speak to Amendment 46 and its Scottish equivalent, Amendment 73, which I trailed briefly at Second Reading. I do so with the support of the noble Lords, Lord Butler and Lord Carlile, and the noble Baroness, Lady Manningham-Buller.

My report A Question of Trust, published in 2015, recommended a new authorisation and oversight structure in relation not to undercover operatives but to other covert powers exercised by intelligence agencies and the police, including the interception of communications and equipment interference. Its most radical recommendation was to introduce a requirement of prior approval by judicial commissioners—the senior judges in what is now known as IPCO, whose functions were so well described just now by the noble Baroness, Lady Kennedy —before warrants for the exercise of such powers could enter into force. That principle was given effect in the Investigatory Powers Act 2016.

I was converted to the idea of prior judicial approval by detailed observation of the practice in the United States and Canada, both of which introduced such systems many years ago after well-publicised abuses of executive power. Their systems work well and so, I believe, does ours. I have great respect for the formidable array of noble Lords, led by the noble Lord, Lord Dubs, who, by signing some of the amendments in the group, have proposed extending that system to the authorisation of CHIS criminality. However, an amendment to that effect was heavily defeated in the Commons. Where an alternative presents itself that offers adequate protection and a realistic chance of making its way into the Bill, I am concerned that we should not miss the chance to consider it. That alternative, as set out in my amendments, is notification of criminal conduct authorisations to judicial commissioners in real time, or as close to real time as is reasonably practicable. I will try to explain it.

The person who approves the interception by a public authority of telephone communications must assess the likely operational dividend against the likely intrusive effects—a task that judges are abundantly suited to perform, usually on the basis of a careful written assessment. Whether to use and how to task a CHIS requires decisions of a quite different nature based on immersion in the human complexities of fast-changing situations. Those decisions depend on close personal knowledge of a person’s character, which will often be unreliable and volatile, and on assessments of the underworld group in which that person is embedded. The authorisation of criminality is simply one part of that complex human relationship.

It may sometimes be decided at very short notice to authorise participation in criminality to preserve a CHIS’s cover and his or her safety. The person who tasks a CHIS, including by authorising criminality, thus takes on a weighty duty of care towards not only any potential victims of that crime but an often unpredictable human being for whom exposure could mean injury and even death. Where non-police CHIS are concerned, that person is also licensing a private individual, rather than an agent of the state, to commit crime.

As someone who until this year was an investigatory powers commissioner himself in Guernsey and Jersey, I frankly admit that this is not a function I would have felt well equipped for. Some judges, I am sure, are made of sterner stuff: with a great deal of training, I accept that prior judicial authorisation might well be made to work. My points are simply that this is a long way from the classic realm of prior judicial approval; that it is an uncomfortable solution, a feeling that I was interested to hear is shared by the noble Baroness, Lady Chakrabarti; and that there is an alternative which has not already been rejected.

The distinction between the tasking of CHIS and the operation of other forms of covert surveillance is recognised in other jurisdictions. It was North American traditions of judicial authorisation, as I have mentioned, that inspired A Question of Trust and the Investigatory Powers Act 2016. But the Canadian CSIS Act, much praised for its other qualities in previous debates on the Bill, does not, so far as I can see, provide for independent authorisation of CHIS criminal conduct. Nor are judges involved in the tasking of undercover operatives by the FBI. Otherwise, illegal activity requires approval by, at most, a senior field agent or, for more serious crimes, the US Attorney’s Office. Nor, if I recall rightly, was the Strasbourg case cited by the noble Baroness, Lady Kennedy—Szabó and Vissy—one that concerned the tasking of undercover operatives.

There is also precedent in our own law for a system of real-time notification to judicial commissioners, such as I propose in these amendments. It is the system introduced in 2013, when the “spy cops” scandal first broke, to monitor undercover police deployments of less than 12 months’ duration. It has operated satisfactorily since then, judging by the annual published reports of IPCO and its predecessor body. Indeed, the wording of my amendment is taken with little alteration from the relevant statutory instrument of 2013/2788. I add that any reservations I have about involving judges in the highly sensitive and fact-dependent decision to authorise criminal conduct are multiplied severalfold by the proposal that a hard-pressed Secretary of State should be given this responsibility. Accordingly, with respect to the very distinguished names that it has attracted, I am not at all convinced by Amendment 15.

Real-time notification would bring real advantages. It concentrates the minds of authorising officers to know that their authorisation will soon be on the desk of a High Court judge, sometimes before any criminality has taken place. Some officers will seek preliminary advice or guidance before acting, a course that it is open to IPCO to encourage, and that is of particular value for those authorities that make only occasional use of a power. Notification may prompt questions, observations or recommendations for that case or for the future. This is the core of IPCO’s demanding oversight work, much of which is implemented by its highly skilled inspectorate and whose detail is only hinted at in IPCO’s annual reports. A serious error report under Section 231 of the Investigatory Powers Act 2016, as we have discussed previously, may be accompanied by a notification of affected persons that they have a right to apply to the Investigatory Powers Tribunal, at least in any case where the judicial commissioner judges that to be in the public interest.

Accordingly, I commend Amendments 46 and 73 to the House as a workable alternative, given the stance of the Government, and one that is perhaps more suited to the particular skills of our judges in the very particular circumstances in which CHIS handling takes place.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Anderson, in speaking to my Amendment 76. I must apologise because I was not able to be present for Second Reading; it clashed with the Medicines and Medical Devices Bill, to which I had tabled several amendments. If I had been able to speak, I would have supported the intention to place on a statutory basis the covert activity covered by the Bill. Equally, I would have sought that that should have taken place within appropriate boundaries and safeguards. Rather, as the noble Lord, Lord Cormack, said earlier, the debate this afternoon has reinforced in me the need for this Bill to be seriously amended to make sure that those safeguards are in place. It also underpins the importance of the amendments in this group and the role of the independent Investigatory Powers Commissioner, who monitors the use of these powers through inspections, as we have heard, and publishes an annual report.

Amendment 76 is very much probing in nature to ask the Minister about the role of police and crime commissioners. It follows from discussions with the West Midlands PCC, David Jamieson, and has the support of my noble friend Lord Bach, the PCC for Leicestershire, who will speak later to this group of amendments.

As we have heard, police forces are subject to IPCO inspections, yet as I understand it, under current legislation, there is no role for PCCs in relation to covert intelligence. The argument made by PCCs is that as they are responsible for holding the chief constable to account, they should at least have some strategic oversight into the inspection process. Locally, my own force, the West Midlands Police, has previously arranged for briefings from the IPCO in the inspection outcome, and those engagements have been extremely useful in understanding how the force is complying with RIPA and providing reassurance in respect of the powers used. The PCC holds the chief constable to account in a number of ways, but partly through an annual report to the strategic policing and crime board on the use of RIPA. This is presented and discussed in private session in recognition of the highly sensitive nature of the activity.

Looking to the IPCO report of 2018, which is the latest I could find published on the web, there is a specific and lengthy section on law enforcement agencies. It looks at how it has used powers under the Investigatory Powers Act, including covert intelligence sources and surveillance activities under RIPA. The IPCO noted in general that the existence of experienced and specialist teams was important to establishing and maintaining a good level of compliance. It concluded that, although standards vary across law enforcement agencies, the appropriate processes are in place and cases are handled in compliance with the code of practice. This is good to hear, but what if a police force was found to be performing inadequately? What intervention, for instance, would take place with the chief constable and how could that happen without the involvement of the PCC? I would be grateful if the Minister could respond to the question.

The advent of this Bill provides an opportunity to address the issue and formally add a provision that gives PCCs a strategic oversight role in IPCO inspections of local police forces. Of course that has to be strategic, recognising the sensitivity of the work. I am not proposing an exact mirror of the role that PCCs have, for example, in relation to Her Majesty’s Inspectorate of Constabulary and fire and rescue service inspections. As a minimum, I ask that PCCs should be engaged in a debrief following the inspection in order to understand any urgent issues and how the force needs to address them. This is not a major amendment, but it is important that we understand how the accountability of chief constables operates in the process. If the IPCO finds that a police force is not acting satisfactorily, it is important that appropriate action is taken.

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

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[The Deputy Chairman of Committees]

It may help the noble Baroness if I answer the procedural question she put at the beginning of her speech. It is possible for the Virtual Committee to debate every clause stand part question—indeed, each clause has to be stood part in this procedure—but it is not possible to vote on that at this stage. If that will be required at a later stage, voting can take place. I hope that she finds that helpful.

[Lord Anderson of Ipswich (CB)]

My Lords, as I understand it, the amendments in this group have two aims: to curb the overbroad power to implement relevant international agreements by regulation, and to signal in primary legislation that there is no objection to giving the force of law to the Lugano convention. I support the first, which is furthered by other groups of amendments, and am sympathetic to the second. However, for the reasons given by my noble and learned friend Lord Mance at Second Reading on the interrelationship between Lugano and the 2019 Hague Convention, there seems to be a question of whether we should sign up immediately to Lugano, even if the EU gives its consent, which is perhaps not a given. I would welcome the Minister’s considered comments on that.

It was good to hear the Minister say at Second Reading that the United Kingdom, should we become a party to Lugano, could drive for its amendment so as to incorporate into it the material improvements that as an EU member state we did so much to help deliver in the form of the recast Brussels regulation. Speaking as a practitioner—I declare an interest as a practising barrister—and as a former member of the EU Justice Sub-Committee, with some awareness in both capacities of the defects of the Lugano convention, I suggest that we not only could do so but should do so.

[Lord Adonis (Lab)]

My Lords, the arguments put forward by my noble and learned friend Lord Falconer seem utterly compelling and are supported not only by every speaker in this debate so far but also by the Constitution Committee, chaired, as he said, by my noble friend Lady Taylor.

My aim in speaking is not to contribute to the specific discussion on the amendment, though I think it is overwhelming, but to comment on the Virtual Proceedings, because understanding what happens in this Committee will be hugely important to how we take forward both the Virtual Proceedings and hybrid proceedings afterwards. I hope that I can be permitted to comment on what is happening, as I will at later stages of our discussions, because this will be so important to the Procedure Committee in deciding how to take forward our proceedings hereafter. Of course, the noble Lords and the officials doing that will read the record; it is important to have in Hansard what is happening at these key stages.

I want to make three points that have occurred to me already. First, it is not clear to people taking part in these proceedings who exactly is in the Committee. At the moment I can see only a handful of faces. After the Deputy Speaker calls people to speak, they suddenly appear from nowhere on my screen. It is very pleasant to see them appearing but it is not at all clear who will appear next. I cannot see the Minister at all; I assume that he is in the Committee, but that is not evident on the screen. My second key point is that is it a bit haphazard as to whether people can be followed, depending on the quality of audio and visual equipment.

Thirdly, I flag up the point made by the noble Lord, Lord Pannick, about Report. My understanding is that it will be possible to table amendments exactly as tabled in Committee on Report, because we cannot vote in Committee—a hugely important point. In the discussion in the Chamber last week about how Report would be handled, the Leader of the House and my noble friend the Leader of the Opposition gave an almost categorical undertaking that we would not have Report until we had a hybrid House, so that it is possible for Members to participate in the Chamber and we can have the usual cut and thrust that we have in the Chamber, particularly when we are dealing with legislation and technical points.

I simply make the point that, from my observation of proceedings so far, it is essential that Report takes place in the Chamber and we should not have Report for this highly important Bill until it is possible to have the hybrid proceedings in operation.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I shall try to deal with this group very quickly. It illustrates the width and uncertainty of the power given in Clause 2. Clause 2(1) states:

“The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating”.


As I understand it, if there is a treaty that relates partly to private international law and partly to other things, the Government can use regulations to implement the part that relates to private international law and make any regulations relating to that. For legal certainty, it would be much more appropriate if this power could be used only if the agreement it covers relates exclusively to private international law. That is what Amendment 2 does.

The next amendment in the group is Amendment 6. Clause 2(5) states:

“Regulations under this section may include provision about … legal aid.”


For reasons that are completely mysterious, provisions about legal aid can be made under a Bill on private international law. There should not be power under this Bill to deal with legal aid. If the Government want to make provisions about legal aid that might relate to the consequences of a private international law agreement, they should be made under legal aid legislation, not under this Bill.

Line 22 of page 3 of the Bill allows the Government, by regulation, to introduce changes to our domestic law in respect of not only agreements that have been entered into but of agreements to which we are expected to become a party. That would mean that if the Government reasonably believe they are about to sign something they can pass legislation that gives effect to it. What happens if we do not sign it? I suggest that we restrict the power to where the United Kingdom is a party to such an agreement. It would not cause a problem in relation to time. We normally sign and become a party before ratification, so the amendment would not cause any difficulties.

Amendments 10, 11, 12 and 13 would restrict the definition of private international law in a variety of ways. Currently, the definition of private international law in the Bill is not an inclusive definition but states what private international law includes but not exclusively. It says that it includes

“jurisdiction and applicable law … recognition and enforcement in one country or territory of … a judgment, order or arbitral award … an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations”

and “co-operation between … countries”. First, for legal certainty reasons it should not be a definition that includes only some examples and nothing else. It should relate only to those for the purposes of legal certainty. Secondly, it should not deal with arbitral awards because if it does it will be stamping on the toes of other bits of legislation. Thirdly, when the Bill refers to

“an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations”

that covers practically everything. It needs to be restricted.

The final amendment in this group relates to Clause 2(8), which allows model laws to be introduced. Model law is where a number of countries agree, for example on insolvency, that certain principles should be agreed across borders to apply to that area of law. There is no reciprocal requirement for each country to introduce the model law and it is for each country to decide how it implements a model law. Clause 2(8) would allow, for example, the UK to introduce by statutory instrument wholesale changes to our insolvency law, even though there was no reciprocity with other countries. It would be a door that opened a range of legislation on insolvency simply because some of the provisions included model laws. It is wholly inappropriate that this should be in the Bill. I beg to move.

[Lord Anderson of Ipswich]

My Lords, those of us who are less than happy with Clause 2 have three options: restricting it to Lugano, as we have just debated; voting to remove it altogether, as both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have recommended; or voting to trim its scope in a variety of respects, as the amendments in the name of the noble and learned Lord, Lord Falconer, in this and the following group seek to achieve. I welcome the amendments in this group, essentially for the reasons given by the noble and learned Lord, which there is no point in my repeating.

However, Amendment 16, which would remove the reference to model laws, is particularly important for two reasons. First, as the noble and learned Lord said, model laws are not international conventions but, as expressed by the Bar Council, collections of soft law provisions which often need to be modified substantially before being given effect in domestic law. The noble and learned Lord, Lord Falconer, illustrated that very well with the example of insolvency. Secondly, model laws are not subject to the provisions of CRaG and cannot benefit from such “limited and flawed” comfort—in the words of the Constitution Committee from April 2019, repeated today by the noble and learned Lord, Lord Mance —as may be given by the operation of its mechanisms.

That said, I incline to think that these amendments, even viewed collectively, are insufficient to meet the substantial constitutional concerns that the Constitution Committee identified in its recent report on this Bill, concerns which to my mind the Minister has not yet allayed, for example with his remarks on timing and reputational damage. That is a matter for the debate on whether Clause 2 should stand part, on which I see that a good deal of firepower has been virtually assembled and which I do not seek to pre-empt or express a final view on at this stage.

Finally, I think we all want to acknowledge the enormous efforts made by the staff of the House to ensure that debates on legislation such as this can take place in a coherent manner. I hope that I do not tempt the fates by saying that. However, I echo the comments of my noble friend Lord Pannick and the noble Lord, Lord Adonis, that voting on the Bill must be possible, by whatever means, when it is brought back on Report. I am grateful for the reassuring words of the Minister on that, but I would be even more grateful if he would upgrade his reassurance into an undertaking, which I think he indicated it was not.

[Lord Morris of Aberavon (Lab)]

My Lords, I am indebted to the noble Lord, Lord Rowlands, for drawing my attention to the impressive eighth report of the Delegated Powers and Regulatory Reform Committee, of which he is a member, and the Minister’s reply.

Any expertise I acquired in the course of my academic education in Cambridge has, I fear, slipped away. I am glad that, as a law officer, I was not particularly troubled by questions of private international law, in stark contrast to public international issues such as advising on Kosovo, Iraq, Sierra Leone, the United Nations and elsewhere. My remarks are addressed to Amendment 16 but equally apply to a lot of issues I would have raised on the stand part debate, and therefore I may be excused from repeating them when we come to that issue as the same questions arise.

Having examined the evidence in the two documents, surely the preferred course is a matter of judgment. I leave on one side the hugely impressive technical arguments we have heard during this debate. The issue is this: does one depart from the practice of 100 years of the need for primary legislation to implement a treaty or does one bow to the urgency and the apparent narrow window to implement the application of the Lugano convention before the end of the transition period? Other examples have been cited, but I do not expect that they have the same urgency as that.

The noble Lord, Lord Anderson of Ipswich, mentioned the hearing of the Justice Sub-Committee, which I used to chair, in which some rather fundamental concerns were raised about Lugano in the course of the evidence, particularly regarding family matters.

The Minister believes that proceeding by statutory instrument is necessary to implement agreements in a timely manner. That is the issue he puts before us today. The question that concerns me is, while there might be a discrete argument for dealing with issues in the way proposed during the transition period, has it occurred to Her Majesty’s Government that it might be more acceptable to put forward a much narrower clause to deal with a specific mischief such as Lugano? I agree with the spirit of the remarks made by my noble and learned friend Lord Falconer.

It would be better if we had something much narrower to deal with the specific issue than the rather wide power that is now being granted to the Government. That certainly would have the attraction of being more proportionate. Failing that, my submission would be to delete Clause 2 altogether. That really would meet the harm that has been ventilated so ably in the course the debate.