Detainee Issues

Debate between Lord Young of Cookham and Baroness Ludford

Thursday 18th July 2019 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I thank the Minister for repeating the Statement. However welcome it is that the Government have accepted the Investigatory Powers Commissioner’s recommendations to replace the current consolidated guidance with new principles, the refusal to re-establish a judge-led inquiry, which was promised nearly a decade ago, is deplorable. The Intelligence and Security Committee, under the chairmanship of Dominic Grieve, did its best in the reports it produced a year ago, but the Prime Minister denied it access to relevant witnesses such that it was unable to conduct an authoritative inquiry and produce a report, so it had to stop.

However, the ISC estimated, on the basis of the research it was able to do, that UK personnel had been involved in 2,000 to 3,000 detainee interviews in the period 2002 to 2004. It found 166 incidents recorded, and there were huge gaps in the records, where UK personnel either witnessed detainee mistreatment, were told of it by the detainees themselves or were told of it by foreign agencies. In addition, the ISC found 198 recorded cases where UK personnel received intelligence that they knew or should have suspected was tainted as it resulted from detainee mistreatment. That makes getting on for 400 cases, some of which would surely have involved torture or illegal behaviour by British officials. Since the ISC found a lot of gaps in those records, it could be many more. Then there is complicity in illegal rendition, secret imprisonment and disappearance. It is not acceptable to try to bury this sorry, disgraceful history. There needs to be transparency and accountability in establishing the truth, not a continued cover-up. Anything less may well breach the requirements of the European Convention on Human Rights.

Like this Statement, today’s Written Statement from the Prime Minister on the new principles asserts that the Government’s policy is not to,

“participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment”.

It would be extraordinary if it were otherwise. However, there still seems to be wriggle room for Ministers to authorise co-operation with torture and inhuman treatment, in breach of international law. Can the Minister assure us that the Ministry of Defence document revealed in May—it made clear that Ministers permitted themselves to share intelligence with allies even if there was a serious risk of torture—is now redundant and has been withdrawn, and that the principles would ban both Ministers and personnel from taking such a real risk?

On that note, can the Minister assure us that the extradited Hashem Abedi, the brother of the perpetrator of the appalling Manchester Arena bombing, was not mistreated or tortured in Libya?

The suspicion must exist that this brushing under the carpet is to please President Trump at a time when the likely next Prime Minister is keen to be chummy with him. That would be morally shameful. The ISC reported MI6 as saying that, post 9/11, there was,

“an unconditional reflex to support the United States, which … came from the political centre”—

namely, No. 10. The ISC concluded that,

“the UK saw itself as the poor relation to the US, and was distinctly uncomfortable at the prospect of complaining to its host”.

I am afraid that, once again, this sounds all too familiar.

In 2010, the coalition Government resolved to establish the truth through the powers of a judge. It is shocking that this Conservative-only Government have abandoned that attempt.

[Lord Young of Cookham]

My Lords, I begin by saying that I understand the disappointment of both Front Bench spokespeople at the decision not to hold a further judge-led inquiry. Perhaps I can amplify the reasons that I gave in the Statement.

Detainee Mistreatment and Rendition

Debate between Lord Young of Cookham and Baroness Ludford

Tuesday 16th July 2019 Lords Chamber

[Lord Young of Cookham]

I join the noble Baroness in paying tribute to my right honourable friend Ken Clarke, who has pursued this issue with commitment for many years, not least because of undertakings he gave when he was Lord Chancellor in the coalition Government. I note her very strong wish that his campaign should be rewarded with the announcement of a judge-led inquiry later this week. The noble Baroness will understand that I cannot anticipate my right honourable friend’s Statement, but I know she will take into account the views that noble Lords express in this exchange.

[Baroness Ludford (LD)]

My Lords, can the Minister confirm that the Statement on a judge-led inquiry and the updating of the consolidated guidance promised yesterday by the Deputy Prime Minister will be an Oral Statement, as requested by the Speaker? Can he confirm on which day it will take place?

The sudden spurt of speed is welcome, but very belated. It is 17 years since the US rendition and torture in which the UK colluded began, and nine years since the Gibson inquiry was first set up. Is this because Prime Minister May fears that a Prime Minister Johnson would succumb to pressure from President Trump not to revive the inquiry? We have already heard only this afternoon that the Government have made no representations to the Trump Administration about that Administration’s child migrant detention.

Last year, the ISC was concerned to note that HMG,

“has failed to introduce any policy or process that will ensure that allies will not use UK territory for rendition purposes without prior permission”.

It appeared to be quite concerned that the,

“shift in focus signalled by the … US administration”,

meant that,

“reliance on retrospective assurances and the voluntary provision of passenger information”,

was not “satisfactory”. Are these kinds of concerns now driving this welcome but slightly mystifying sudden promise of a Statement?

[Lord Young of Cookham]

I am not quite sure that the noble Baroness can complain about a sudden Statement when at the beginning of her question she complained about the length of time it has taken to reach a decision. In answer to her first question about whether the Statement will be oral or written, I cannot add to what my right honourable friend the Chancellor of the Duchy said yesterday in response to a request from the Speaker that it would be an Oral Statement:

“I will make sure that your comment to that effect is faithfully reported to my colleagues in Cabinet, Mr Speaker”.—[Official Report, Commons, 15/7/19; col. 589.]


I am afraid I cannot add to that.

I understand what the noble Baroness said about the length of time. This is an important and sensitive decision, as are any decisions involving intelligence and security, and requires careful analysis. In the exchange yesterday, my right honourable friend made it clear that,

“the Prime Minister has been very clear that she regards it as her responsibility to ensure that the decision is taken and announced to Parliament before she leaves office”.—[Official Report, Commons, 15/7/19; cols. 590-91.]

I might need to write to the noble Baroness on the other issues she raised, but Ministers must be involved in any case where an intelligence officer believes a detainee is at risk of mistreatment by a foreign state. The Ministerial Code obliges us to abide by international obligations such as the UN convention on torture and the ECHR.

Banks: Fraud Prevention

Debate between Lord Young of Cookham and Baroness Ludford

Monday 20th May 2019 Lords Chamber

[Baroness Ludford]

To ask Her Majesty’s Government what further action they propose to take, and for banks to take, to prevent fraud perpetrated on bank customers.

[Lord Young of Cookham (Con)]

My Lords, in 2016, we set up the Joint Fraud Taskforce, including law enforcement, banks and government, to tackle fraud. It has already delivered on initiatives such as the banking protocol, which prevented £38 million falling into fraudsters’ hands and led to 231 arrests in 2018. The Joint Fraud Taskforce must build on its successes and not just make it more difficult for fraudsters to operate but bring them to justice.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for that reply, but I am thinking more of action that banks could take. Let us hope that the, frankly, poor, often dismissive and hit-and-miss response by banks to defrauded customers truly is on the brink of change—and not before time. Since I tabled my Question, my bank, TSB, has issued its fraud refund guarantee, promising not to claim that customers authorised a payment when they fell for a scam. Will the regulator oblige all banks to follow suit?

A new voluntary code comes into force next week, offering the so-called confirmation of payee next year. Will legislation be brought forward if the voluntary code proves ineffective?

[Lord Young of Cookham]

The voluntary code that comes into effect next week will in fact extend to all banks the facility to which the noble Baroness just referred, which has been undertaken by the TSB. As from next week, as long as you have done everything that you should and it was not your fault, you will get your money back. Vulnerable victims will get their money back even if they have not exercised due care. I welcome this not just because it gives added protection to customers, but because it means that the banks will have to pick up the bill, which will add to their incentive to reduce, so far as possible, incidents of fraud.

The noble Baroness then referred to confirmation of payee. She is quite right: at the moment, an electronic payment is processed on the basis of the sort code and the account number. As from later this year, banks will have confirmation of payee—in other words, they will check the name. That means that it will be difficult for fraudsters to intercept funds designed, for example, for solicitors on conveyancing, and misdirect them.

European Parliament Elections

Debate between Lord Young of Cookham and Baroness Ludford

Wednesday 24th April 2019 Lords Chamber

[Lord Young of Cookham]

Well, I shall certainly be supporting Conservative candidates in the European elections. I am sure that the noble Lord, led by the Opposition Chief Whip, will be heading a task force to the south-west to support the noble Lord, Lord Adonis, even if the price of success means that we no longer have his contributions to our debates on statutory instruments.

[Baroness Ludford (LD)]

My Lords, does the Minister agree that it would be deplorable if all the effort and money being put in by the Electoral Commission and local electoral returning officers were wasted due to Tory infighting and fear of the European elections? It is rather rich that Brexiters do not like the democracy that the European elections incorporate, having always claimed that the EU is undemocratic.

[Lord Young of Cookham]

The noble Baroness will be as familiar as I am with the reasons why we might have to go ahead with these elections. After the decision on 29 March not to vote for the withdrawal agreement, it became inevitable that there would be a risk of holding these elections. The Prime Minister has done all that she possibly could to avoid this scenario, and I commend her patience and determination. There is still time to avoid those elections if enough people in another place change their minds and decide to back the deal.

European Union Referendum

Debate between Lord Young of Cookham and Baroness Ludford

Wednesday 4th July 2018 Lords Chamber

[Lord Young of Cookham]

I believe that we should respect the result of the referendum. A number of inquiries are going on into the referendum, which have been referred to. The Electoral Commission is looking into a number of allegations. It makes sense to await the outcome to see whether those allegations are upheld, but I have seen nothing that would account for the very substantial difference in the numbers who voted leave rather than remain.

[Baroness Ludford (LD)]

My Lords, the case for Brexit once rested on promises of sunlit uplands. Those have long vanished. The only thing Brexiteers now cling to is the will of the people, but that cannot be measured by a cheating referendum, dodgy money and manipulation under Putin’s guiding hand. When will the Government accept that the will of the people must be properly and fairly measured now by a people’s vote on the actual Brexit deal?

[Lord Young of Cookham]

Noble Lords had an opportunity to debate and vote on that in the recent EU withdrawal Bill. The notion of a second referendum was not one that found favour in either House. On the rest of the noble Baroness’s question, since the referendum, Parliament has voted to trigger Article 50 and we have passed the EU withdrawal Bill. That gives us a democratic mandate.

Brexit: European Arrest Warrant (European Union Committee)

Debate between Lord Young of Cookham and Baroness Ludford

Thursday 8th February 2018 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, perhaps I may take the opportunity first to thank the EU Home Affairs Sub-Committee for producing its report, Brexit: Judicial Oversight of the European Arrest Warrant. I am grateful to all those who have spoken in the debate, and in particular to the noble Lord, Lord Jay, for securing it. The Government welcome the next inquiry, which he referred to in his opening remarks. The noble and learned Lord, Lord Brown, implied delicately that I am a newcomer to this subject and as such I welcome the clarity of the report, its sharp focus on the key issues, and the outline in the concluding paragraphs of a possible way forward. During the debate other noble Lords, including the noble Lord, Lord Marks, suggested their possible solutions and ways forward. However, I am a former Member of Parliament, and some of my constituents were on the receiving end of EAWs and occasionally sought my advice as to how they might possibly evade their reach, and of course as a member of the Cabinet I sat around the table when we opted back into the EAW in 2015, so I am not wholly unfamiliar with the issues raised today.

A range of views have been expressed across the Chamber, but I am reassured by the broad consensus across the House, first, that the EAW is the most effective means available to apprehend individuals wanted by other member states and to ensure that those who have fled the UK are returned to face justice; and, secondly, that the Government should look to sustain as close a partnership as possible with our EU neighbours on security, law enforcement and criminal justice matters after we leave the EU, and that effective extradition arrangements should form part of that new relationship. A number of noble Lords, including the noble Lord, Lord Jay, quoted the Home Secretary, who said that she regarded the European arrest warrant as “an effective tool” helping us to deliver,

“effective judgment on … murderers, rapists and paedophiles”—[Official Report, Commons, 6/3/17; col. 550.]

and that it is a “priority” for the Government to ensure that we can maintain those arrangements. As the noble Lord, Lord Hannay, and others said, these are arrangements of major importance to the country.

In the future partnership paper that we published on 18 September last year, we indicate that we will look to reach an agreement with the EU that provides for practical operational co-operation, facilitates data-driven law enforcement and allows multilateral co-operation through EU agencies. We believe that such an agreement would be in the interests of the EU and its member states, as well as the UK. We are confident that our EU partners share our view on the importance of reaching an agreement that protects the safety and security of citizens and upholds justice in the UK and across the EU. The guidelines adopted by the EU 27 at the December European Council reaffirmed their readiness to,

“establish partnerships in areas unrelated to trade and economic cooperation, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.

Previous examples of the EU’s co-operation with third countries—which is what we would be post Brexit—on security, law enforcement and criminal justice have so far generally been limited to agreements covering individual measures, such as Europol or passenger name records, but our assessment is that other approaches are legally viable. The UK’s geographical proximity to its European neighbours, the volume of cross-border movements between the UK and the EU—including, for the purposes of this debate, the volume of extraditions to and from the UK, which the committee highlights in its report—as well as the high degree of alignment in the scale and nature of the threats that we face, call for a new, more ambitious model for co-operation than those that currently exist.

With this in mind, the Government see a strong case for developing a new, dynamic treaty that provides a comprehensive framework for future security, law enforcement and criminal justice co-operation between the UK and the EU. This treaty would provide a legal basis for continued co-operation between the UK and the EU in this area.

To function properly we need dispute resolution, as referred to by many noble Lords during the debate. An arrangement along the lines that we have proposed will need to be supported by a means of resolving any disputes between the UK and the EU. It would be in the interest of both sides to ensure that the rights and obligations contained in the agreement can be relied upon, that both parties have a common understanding of what the agreement means, and that disputes can be resolved fairly and efficiently. This has been to some extent at the heart of the debate.

Dispute resolution mechanisms are common in EU third-country agreements and other international agreements, including those agreed by the UK. A number of examples are set out in the future partnership paper Enforcement and Dispute Resolution, which the Government published last August. They illustrate the range of ways in which the parties to international agreements, including the EU, have obtained assurances that obligations in those agreements will be enforced, that divergence can be avoided and that disputes can be resolved.

[Baroness Ludford]

I apologise for interrupting the Minister, but how is that relevant to an individual disputing the execution of a European arrest warrant? How does state-to-state dispute resolution apply in the circumstances of a judicial process?

[Lord Young of Cookham]

I will come in a moment to the distinction between how country-to-country agreements are enforced and how individuals enforce any rights they might have in the countries concerned.

One common feature of most international agreements, including all agreements between the EU and a third country, is that disputes are not resolved by giving the courts of one party direct jurisdiction over the other. Noble Lords will be aware that one of the Government’s key commitments in leaving the EU, as set out in our future partnership paper Enforcement and Dispute Resolution, is that we will bring about an end to the direct jurisdiction of the CJEU in the UK. I know that that is particularly unpalatable to the noble Lord, Lord Marks, but it is a clear statement of government policy.

Previous examples of the EU’s co-operation with third countries on security, law enforcement and criminal justice demonstrate that direct CJEU jurisdiction is not a requirement for such agreements. Even the more ambitious and strategic relationships that the EU has adopted—for example, the Schengen association agreements and the European Economic Area agreement—do not involve direct jurisdiction of the Court of Justice of the European Union in those third countries.

There is no precedent, and indeed no imperative driven by EU, UK or international law, which demands that enforcement or dispute resolution of future UK-EU agreements should fall under the direct jurisdiction of the CJEU, or indeed that UK courts should have direct jurisdiction over the EU. However, I agree with the noble Baroness, Lady Kennedy, and others that if you do not have the CJEU, you need some other mechanism for resolving disputes. We will therefore look to engage constructively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU in underpinning the effective operation of a new partnership in this area. We do not underestimate the complexities involved in negotiating our future relationship with the EU, but we are confident that there is recognition on both sides of the importance of addressing them and reaching a robust agreement.

The noble Baroness, Lady Ludford, mentioned some of the problems with the EAW, and the noble and learned Lord, Lord Brown, touched on them. Noble Lords may recall that, in 2014, we reformed the operation of the EAW to make sure that it worked effectively and better protected UK citizens. As has been mentioned, individuals will not now be extradited where a case is not trial-ready or where it is disproportionate so to do.

The noble Lord, Lord O’Neill, put it graphically when he said that the EAW has enabled us to get rid of the bad guys we do not want and get hold of those we do. The EAW has enabled the UK to surrender more than 10,000 individuals accused or convicted of a criminal offence to other member states, including those accused or convicted of murder, child sexual offences, terrorism or, as the noble Baroness, Lady Kennedy, mentioned, human trafficking. During the same period, the EAW has been used to surrender more than 1,400 individuals back to the UK.

As the committee noted, we are a net contributor to the EAW system: for every one person arrested on a UK-issued EAW, the UK arrests eight on EAWs issued by other member states, so in the balance of trade of those under arrest, we are net exporters. For all these reasons, agreeing effective extradition arrangements will be an important part of negotiations and of mutual interest to both the UK and member states.

Perhaps I may touch for a moment on transitional arrangements, which the committee also raised in its report and were referred to in our debate. The Prime Minister was clear in her Florence speech that an implementation period should be based on the existing structure of EU rules and regulations, and that the UK would take part in existing security measures during such a period. The Prime Minister was also clear that we may start off with the CJEU still governing the rules we are part of for that period. We therefore do not anticipate the cliff edge that the committee was keen we should avoid and which was touched on during our debate. We hope that we do not see the ghost of Banquo, though I am sure he would be familiar with the panelled rooms of this stone building. That commitment was confirmed by the Minister for Immigration, Nick Hurd, when he gave evidence to the Home Affairs Select Committee on 23 January. As I said a moment ago, it is in the interest both of the UK and the EU to agree the precise terms of the implementation period as quickly as possible, and we are confident that we will come to an agreement on this in March.

On the case of O’Connor, I am somewhat limited in what I can say as this is a live case. We are monitoring what is going on and we cannot speculate on the outcome. My understanding is that the Irish Supreme Court has yet to formally refer the matter to the CJEU or, indeed, to determine what the question should be. We will continue to work with our counterparts in the EU to ensure that those who have fled justice in the UK return to face it.

A number of noble Lords mentioned the time it took to negotiate the extradition agreement between Norway and Iceland and the EU. With respect, we are starting from a slightly different position, in that they started from a position of total divergence whereas we are starting, in this case, from a position of total alignment. The starting point for negotiations will be different from that of either of those countries: we start, as I said, from a position of total alignment since we operate the same EU tool, the EAW, and that was not the case for Norway or Iceland.

The noble Baroness, Lady Kennedy, asked whether we would be able to get an agreement on this without accepting the CJEU as ultimate arbiter. I have made it clear that we do not think that that is acceptable and I outlined other scenarios where that was not the case. Indeed, the EU has extradition agreements with a range of third countries, as noted in the committee’s report. None of those involves the CJEU having jurisdiction in those third countries, nor is there another common court between the parties, although I note that in our debate there was a very strong view that there should be some judicial oversight over how disputes are resolved.

Where agreements between the UK and EU give rise to rights or obligations for individuals—the case raised by the noble Baroness, Lady Ludford—those rights or obligations will be enforced by the courts in the UK, and ultimately by the UK Supreme Court. Individuals operating within the EU should similarly be provided with means to enforce their rights or obligations through the courts of the remaining 27 member states, with interpretation by the CJEU where that is appropriate. On facts and figures, table 1 in paragraph 10 has some key statistics, but if the noble Earl, Lord Kinnoull, wants more granularity I would be more than happy to provide that for him.

There was a comment about the Charter of Fundamental Rights. The noble Baroness, Lady Ludford, will have heard what my noble friend Lord Callanan said in winding up the debate on the withdrawal Bill last week. Our intention has always been that, in itself, not incorporating the charter into UK law should not affect the substantive rights that individuals already have, because the charter was never the source of those rights.

I should emphasise that the Government are committed to maintaining and strengthening the co-operation that keeps all European citizens safe, a point that noble Lords have made, and that the desire to do what is necessary to keep our people safe is not one-sided. My ministerial colleagues have spoken to their counterparts in other EU countries and I am reassured to hear that there is a shared understanding of the importance of effective, ongoing co-operation. For our part, we have made clear that the UK’s responsibilities, as a good neighbour, for the security of European citizens as well as our own, will remain on leaving the EU. We will be looking for a future partnership that ensures that those responsibilities can be met.

We recognise the challenges around negotiating a new relationship, including those around designing a new mechanism for resolving disputes between the UK and the EU. The Government are grateful to the committee for its report and its observations about the complexities involved in negotiating new arrangements. We are committed to addressing them and ensuring that we can continue to uphold justice in the UK and across the EU. I reiterate my thanks to the noble Lord, Lord Jay, and to all noble Lords who have taken part in this afternoon’s debate.

Criminal Justice (European Investigation Order) Regulations 2017

Debate between Lord Young of Cookham and Baroness Ludford

Wednesday 6th December 2017 Grand Committee

[Lord Young of Cookham]

It goes back to what the EIO aims to do. Basically, it is a judicial co-operation mechanism for providing assistance in investigating and prosecuting criminal offences and it replaces the existing scheme; that is, the existing EU and Council of Europe mutual legal assistance measures. It does this through introducing mutual recognition of other member states’ judicial decisions. As my noble friend said, it standardises the process for making requests by using a template form rather than a letter of request, and it specifies time limits for responding. All the evidence shows that it is already working quite well. A number of requests have been made and processed, and it is proving to be a much more efficient system than the one it replaces. As more member states sign up to the EIO, we believe that it will be an improvement on the previous mutual legal assistance scheme.

I am not sure that I have fully understood the point made by my noble friend, in which case I shall read it again in Hansard. I will drop him a line and hope to give him and the noble Baroness an assurance. As I have just said, the EIO is a mutual legal assistance measure. An individual can give a voluntary statement under an EIO or could be compelled to come to court in the UK in the same way as in domestic proceedings. I hope that that gives my noble friend the answer he was seeking.

[Baroness Ludford]

Perhaps I might invite the Minister to agree that one thing that would help in the situation of both the EIO and the EAW would be if the person concerned had legal advice and representation at both ends of the system. One of the regrets that I referred to in general terms was that the UK has not opted in to the directive on the right to a lawyer. That was a great shame, notwithstanding the controversies about legal aid. When the measure was agreed a few years ago, the gold standard was access to a lawyer. Had we opted in—hope springs eternal and there is still time—that would have motivated other member states to make sure that they came up to the mark, because a person who has legal advice and representation is going to be in a much stronger position to contest any unfair treatment.

It is a great pity that the UK, with its strengths in the rule of law and justice, has not opted in, apart from to the directive on interpretation and translation—which, contrary to the remark made by the Advocate-General for Scotland last week, is a directive, not a regulation. I was the rapporteur on it. Unfortunately, the UK did not choose to take part in the other ones in the so-called Stockholm programme of defence rights, so we have an unbalanced participation. I think that it would give everyone more confidence if the UK had a more balanced participation. I suppose that I am only asking the Minister to accept my remarks.

[Lord Young of Cookham]

I think I will respond to those remarks rather than accept them. The noble Baroness prefaced her remarks by saying “notwithstanding any arguments about legal aid”, but I think that that is probably exactly the issue, in that the proposition she has just put forward would mean extending legal aid into an area where it does not exist at the moment. That takes us into a broader argument about legal aid. Perhaps I might offer to write to the noble Baroness if I have misunderstood her comments.