Riot Compensation Bill

Lord Brown of Eaton-under-Heywood Excerpts

Friday 26th February 2016 Lords Chamber

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

My Lords, as ever when I find myself following the noble Lord, Lord Pannick, in a debate in your Lordships’ House, I profoundly regret ever having put my name down in the first place. Either he will have said everything that one had thought worth saying or he will have exploded in advance what one had supposed had been the merits of one’s own position. Certainly, from a historical point of view my speech would have been a little more interesting had he not already shot every one of my foxes.

I cannot pretend to any particular expertise in this area of the law, but I have been intrigued by some of the litigation which followed the 2011 riots. Indeed, I have the full 36-page transcript of the Court of Appeal judgment in the Mitsui Sumitomo case in which the noble Lord, Lord Pannick, appeared for the Mayor of London in that court. It makes extremely interesting reading, at any rate for lawyers.

Having noted the basic curiosity under the 1886 Act, and indeed before that in the 1714 Act, that the community as a whole is under a strict liability to pay compensation for the consequences of a riot, whereas of course ordinarily, generally speaking, the police, as the noble Lord, Lord Pannick, has made plain, are under no such tortious liability, even in cases where they can be shown to have been at fault, the court quoted the celebrated Lord Mansfield’s explanation, given in 1776. The noble Lord, Lord Pannick, has already referred to this but I think that Lord Mansfield is worth a quotation, so I quote him:

“If the act had never been made, the trespassers would have been liable to answer for the whole injury in damages. To encourage people to resist persons thus riotously assembled, and to reward those, who, by doing their duty, shall have incurred their resentment, the same law has made a further provision, that as the trespassers are to be hanged, the country shall pay the damages: And this, by way of inducement to the inhabitants to be active in suppressing such riots, which it is their duty to do: and which being thus made their interest too, they are more likely to execute. This is the great principle of the law, that the inhabitants shall be in the nature of sureties for one another. It is a very ancient principle; as old as the institution of the decennaries by Alfred, whereby the whole neighbourhood or tithing of freemen were mutually pledges for each other’s good behaviour. The same principle obtains in the statutes of hue and cry. It is the principle here”.

The central reason why I refer to the judgment, besides that pleasing piece of historical elegance, is that it overturned the first-instance decision in that case about the range of allowable compensation in these cases. Unlike the trial judge, as the noble Lord, Lord Pannick, said, the Court of Appeal held that the claimants were entitled to all their losses, which include consequential losses, loss of profits, loss of rent and so forth. Displeased, the Mayor of London, represented by the noble Lord, Lord Pannick, failed to get leave of appeal from the Court of Appeal but got it directly from the Supreme Court. As the noble Lord has said, the judgment of that court, the argument having concluded, is now awaited.

With Clause 8, this Bill would pre-empt that decision, obviously not in respect of cases past, including that particular one, but for future cases. It would provide in Section 8(2) and (3), as your Lordships have already noted, that direct loss only is to be recoverable except in the case of temporary accommodation required by those whose houses are rendered uninhabitable. It is subject to the cap of £1 million, designed, reasonably and sensibly, to ensure that it is really the smaller people, individual householders, shop owners and so forth—the uninsured, for the most part—who will be benefited by this legislation, rather than the large insurance companies and those who can afford the fees of the noble Lord, Lord Pannick, who, as he himself points out, will already have obtained premium payments to cover these selfsame losses.

Generally speaking, I find myself rather more supportive of the Bill than it would appear the noble Lord, Lord Pannick, is. It introduces a number of clarifications and improvements. True, as all too often these days, rather more than one would wish is left to secondary legislation, regulation and so forth. It may be that one could improve on those aspects in the course of Committee.

It is of course true that Lord Mansfield’s justification for this particular type of compensation now seems perhaps a little dated; trespassers are no longer removed from the possibility of paying compensation by being hanged. The fact is, though, that there remains, certainly for the uninsured and the smaller people who suffer from these riots, some wish on the part of the wider public that these outrageous incidents of lawlessness should be compensated beyond those in the way of ordinary day-to-day criminality. It is strongly to be hoped, of course, that this Act will seldom, if ever, need to be invoked in future, but if it is I am confident that once it has been through Committee here, it will serve us better than its now obviously somewhat archaic ancestor. In general terms, I wish the Bill well as it progresses further.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 22nd December 2015 Lords Chamber

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

My Lords, this 162-page Bill ranges obviously fairly widely over immigration law. Today, therefore, one needs to be selective. The two matters I have chosen for brief comment are, first, immigration detention and, secondly—if I have time—support for failed asylum seekers. Both have, of course, provoked a great deal of controversy and, indeed, litigation down the years—in much of which litigation I confess that I have been involved.

Immigration detention is the subject of Clause 32 and, more particularly, Schedule 7, which are intended to regulate the granting of immigration bail for all those detained under the several different powers in earlier, pre-existing immigration legislation. As to the term “immigration bail”, I respectfully ask whether it would really be of assistance to anybody to describe it instead as release from immigration detention.

The two basic concerns that arise in this area are, first, the conditions in which those detained are held and, secondly, the length of time for which they are held. The physical conditions of detention are, as is well known, the subject of an ongoing review by a former ombudsman, Mr Stephen Shaw. I think we are promised that report by Committee. Therefore, I shall say nothing about that aspect now.

However, I want to say a word or two about the length of detention. There are two basically different circumstances in which people are detained under the legislation: first, on initial application for asylum and, secondly, when, much further down the line, it is sought to remove people whose rights of whatever sort have expired and it is proposed that they finally be deported. These are very different situations. Speedy decision-making—that is, when it is thought likely that a decision one way or the other on an initial application can be comparatively speedily arrived at—is facilitated by keeping those who make their claims readily available for interview and so forth during the processing of the individual claims. This is known as the Detained Fast-Track—or DFT—operation and has itself spawned a number of legal challenges. It was considered in the APPG report on immigration detention. However, that report concluded that there is, indeed, a need for such a procedure, although it is only fair to say that the report expressed some concern that,

“the focus is on detention rather than making quick, high quality decisions”.

The need was recognised that, in these cases, speed is desirable for both the claimants themselves and the many others who are waiting in the queue to have their applications decided.

The other, very different, situation in which people are detained, sometimes for substantially longer periods, is where asylum seekers—or other categories of immigrants—have exhausted all their claims. They have no further appeal rights or rights to remain and are detained pending their proposed removal from the country. These cases present altogether greater difficulties, certainly in terms of introducing any fixed limit to the permissible length of time for which they can be held. Although, on the face of it, the statutory power to detain pending removal is unlimited, 30 years of case law, starting with a decision by the noble and learned Lord, Lord Woolf, then Mr Justice Woolf, have established that it is not. It exists only so long as there is a reasonable prospect of removal within a reasonable time. These questions are kept under review and are subject, ultimately, to judicial scrutiny and decision.

What is reasonable inevitably depends on the facts of each case and the sort of considerations in play. These obviously include factors such as the risk of the person offending or, often, reoffending. Many of those detained for deportation are FNPs—foreign national prisoners—who are completing their sentences of imprisonment here. There is also the risk of absconding —going to ground and thwarting all attempts to enforce immigration control. Unsurprisingly, all these considerations are listed in paragraph 3(2) of Schedule 7, among the various matters to which regard must be had in deciding whether bail should be granted. Many participants in this debate have urged and will urge, benevolently, for fixed limits—sometimes as little as 28 days—to immigration detention. I say to those noble Lords: do not underestimate the ingenuity and persistence of many of those who seek to defeat immigration controls. Time and again, down the years, the system has been cleverly played, often by those who are least deserving of our sympathies.

In the present edition of one of the standard textbooks on immigration law, the chapter on detention and bail extends to 96 dense pages and endless footnotes. A case on this topic in the Supreme Court in 2011, in which I sat as one of nine justices, stretched to 115 pages of judgments. This is a difficult area of the law and I respectfully suggest that we should not rush to impose some limit. I recognise that, under the EU returns directive—from which the UK opted out—most EU countries have a time limit of under 18 months, some substantially shorter. I would certainly be interested to know how this is achieved; perhaps the Minister can help us. I rather suspect it is because other countries are more ruthless than we have been, over the years, in refusing to allow appeals and challenges against deportation. I am no supporter of what has been called today “indefinite administrative detention” but nor would I support releasing back onto our streets foreign national criminals who have managed to stretch their fight against deportation beyond some arbitrary time limit.

I turn, inevitably and more briefly, to support for failed asylum seekers, covered in Schedules 8 and 9. I hope to be reassured by the Minister that, one way or another, by reference to either local or central government—much of the dispute down the years has been about which of those two bodies is responsible for keeping destitute asylum seekers off our streets—we shall not again be faced, as we have been over the years, with certain immigration regimes which have allowed destitute asylum seekers unsupported on the streets. Some 20 years ago, in the Court of Appeal, I cited the Lord Chief Justice, Lord Ellenborough, from a 200 year-old case:

“As to there being no obligation for maintaining poor foreigners … the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving”.

Surely that holds no less true today.

Those are the only matters on which I will address the House today. These and a number of others will need to be more carefully explored in Committee, when we have more time.

Investigatory Powers

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 8th July 2015 Lords Chamber

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

My Lords, I hesitated before putting my name down for this debate. Nine long years have passed since I was appointed the Intelligence Services Commissioner under RIPA, having acted before that as president of the successive tribunals that were set up to deal with complaints into the various intelligence agencies. I recognise that my experience is, therefore, already to be regarded as perhaps somewhat out of date. This is a fast-moving field, as has already been remarked. However, I want to say a word or two about one of the more substantial divisions of opinion between the two main reports that we are considering in this debate: namely, whether it is Ministers or judges who should be authorising invasions of privacy as provided for under the legislation.

First, however, I shall allow myself a broad reflection. I wonder whether any other noble Lords watched, as I did, on Sunday night, the truly heart-rending play on BBC 1, with Emily Watson playing the mother of a beloved 24 year-old daughter, Jenny Nicholson, who was massacred 10 years ago in the 7/7 Tube bombings. Frankly, nothing could more tellingly have brought to life the absolute imperative of Government doing all in their power to secure public safety.

Of course, there is always a balance to be struck between that imperative—the importance of ensuring that our intelligence agencies have all the powers they need in their never-ending struggle to protect us—and the need also to guard against excessive invasions of privacy. It is a balance required to be struck by reference to three critical touchstones that are provided for in the legislation: necessity, reasonableness and proportionality. However, in striking that balance, and before rejecting a particular application as unnecessary, unreasonable or disproportionate, surely it is appropriate to bear in mind the contrast between, on the one hand, the catastrophic consequences of a terrorist outrage such as 7/7, with the gross violations of people’s human rights that that occasions, and, on the other hand, the relative harmlessness of a privacy intrusion, even if later it might come to appear unjustified.

I speak of the relative harmlessness of an invasion of privacy because, in truth, that is how I see it. Had one lived in parts of eastern Europe with a Stasi-like security service in operation, I acknowledge that one might have seen it differently and in a rather more jaded or jaundiced light. Indeed, Mr Anderson recognised as much on pages 31 and 32 of his comprehensive and hugely impressive report, where he reflected on the marked differences of opinion between our own courts and the Strasbourg court on a number of privacy issues. He instances cases such as those on the retention of DNA samples—on that, I profoundly agree with the view expressed by the right reverend Prelate—and on stop-and-search powers, both of which I touched on in last week’s debate on human rights. For my part, I continue to believe that it is better to allow the occasional questionably justifiable invasion of privacy than to risk losing the chance of avoiding the next terrorist outrage.

I turn now to the question of who—Ministers or judges—should be responsible for before-the-event authorisations of privacy invasions. Let me make it clear at once that I am expressing my views specifically in relation to those invasions of privacy which are applied for by the three main intelligence agencies: MI5, SIS and GCHQ. I have direct experience of those. I say nothing about what are presumably the vast majority of warrants sought for what I think can fairly be called more routine law-enforcement purposes, of which I have no particular experience.

When, earlier this year, we debated the Counter-Terrorism and Security Bill, I unsuccessfully moved an amendment in connection with the proposed toughening-up of the TPIM regime to include what had originally been in the control order regime: provision for internal relocation—internal exile, as it came to be called. I advocated transferring from the Home Secretary to the High Court the primary responsibility for deciding on the facts whether the suspect in question had indeed been engaged in terrorist activity. That followed a clear recommendation by Mr David Anderson QC. However, the amendment was defeated on the basis that it should be for the Secretary of State and not the courts to assess all such matters in any context involving national security. I still happen to think that it was a pity in the case of TPIMs, but I take a very different view in the present context. Orders involving a suspect’s forced internal exile are, I would suggest, hugely more disruptive of people’s lives than what would result from any of the warranted intrusions and interferences with privacy which are under consideration in today’s debate.

I believe that warrants and other such authorisations which are sought by the security services for privacy invasions in the national interest for security, defence and foreign policy reasons should all continue to be decided by Ministers, and that judicial commissioners—let me say at once that I am entirely relaxed about the proposed merger of the various commissioners into a single composite body of retired senior judges—should continue, as in the past, to subject such authorisations to periodic retrospective judicial scrutiny; in other words, the judges’ role should continue to be confined to after-the-event review.

It was always my experience that the Secretaries of State and their dedicated warrantry units were acutely alive to the fact that their processes and at least a proportion of their decisions would be tested in detail and challenged in the course of such reviews. I always found those concerned to be frank and conscientious in their assessment of the various considerations in play. The present Intelligence Services Commissioner, Sir Mark Waller, in his annual report published just a fortnight ago, records at page 24 that he was impressed by the dedication and high ethical principles of all those working for the agencies, and that emphatically was my own experience too.

I take the opposite view from that expressed by the noble Lord, Lord Strasburger, on the need for a judicial warranty to avoid the issue, so it is suggested, of excessive numbers of unlawful warrants by the Secretaries of State. Rather, it seems to me preferable that a Minister should decide these applications, appreciating that he has to reach a defensible conclusion, than that, following the proposed change in the law, he should be tempted to say, “Well, a judge will decide this. Who knows, he may well grant it. It is certainly worth running the case before him”. I suggest that that could lead to less well-targeted warrantry than at present.

All questions of national security and the vital interests of the state should be for Ministers in the first place. Of course the process must be rigorously invigilated. That would continue to be achieved by strict after-the-event scrutiny on judicial review principles. In these sorts of cases there will often be room for two views. Questions of necessity, reasonableness and proportionality do not invariably admit of absolutely plain and categorical answers. The Home Secretary may well have wider perspectives than a judge, whether of the security dangers sought to be avoided, or indeed the possible political fallout from granting or refusing authorisations. The noble Baroness, Lady Manningham-Buller, touched on that aspect.

Commissioners should condemn an authorised intrusion of privacy in retrospect only if the case for it can fairly be said to have been clearly insupportable. In short, on this issue, I prefer the conclusions in the ISC report, but let me add that that does not detract from my profound admiration for the great bulk of Mr David Anderson’s work. He has served the nation well.

Psychoactive Substances Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Lord Cormack]

I said that it had some of the ingredients of a wrecking amendment because it would delay by at least a year the implementation of legislation that many believe to be urgent and necessary.

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

My Lords, I am puzzled. Somebody has lost the plot and it is probably me. I do not see why this has to delay the legislation at all. I follow that in this group, Amendment 115—the last one—would indeed delay the legislation. It involves an insertion into Clause 57, which is about commencement. However, I do not think that applies to any of the other amendments. On the face of it, Amendment 5 seems to demand the implementation of the Bill. How would one review its implementation under proposed new subsection (1)(b), except by bringing it into force and letting it go ahead? Unless someone can explain why Amendment 115 within this group necessarily has to be passed, I do not see that any delay at all is involved.

[Lord Paddick]

My Lords, if I may assist the Committee, clearly these amendments can be taken separately and, if the Committee is minded to say that there needs to be a review and no delay in giving effect to the legislation, that is a matter for the Committee. We are talking about the Misuse of Drugs Act in that amendment rather than the Bill, if that helps the noble Lord.