Sir Edward Heath: Operation Conifer

Viscount Hailsham Excerpts

Tuesday 24th October 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I would say to the noble Lord that of course we have arrived at a situation where Mr Veale has been held to account, so the public should therefore have faith. It perhaps took too long, but he was appropriately investigated along the way. In November 2017, the PCC in Wiltshire referred two matters concerning Mr Veale to the Independent Office for Police Conduct. The investigation related partly to an allegation that a mobile belonging to Wiltshire police was deliberately damaged. He was subject to a management action plan—that was felt to be appropriate after the investigation by the various authorities. So I think it is unfair to say that nothing happened to Mr Veale, but perhaps it did take too long to reach a conclusion. As noble Lords might appreciate, I would certainly agree with that.

[Viscount Hailsham (Con)]

My Lords, does my noble friend understand that many of us simply do not comprehend how a relatively senior police officer could have given credence to allegations that were such patent rubbish?

[Lord Sharpe of Epsom (Con)]

My Lords, with hindsight of course we can call them “patent rubbish” but, at the time, all these allegations had to be investigated; I do not think there is any doubt about that.

Illegal Migration Bill

Viscount Hailsham Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[The Lord Bishop of Durham]

My Lords, I rise to speak to Amendments 156A and 161. Due to a technicality, Amendments 156 and 157 were not formally withdrawn, but they will be withdrawn, so it is Amendment 156A which is under consideration. I note my interests as a trustee of Reset and with the RAMP project, as laid out in the register.

I thank the usual channels for changing business on Monday so that this item was first today rather than last on Monday. We noted previously that, both during the Nationality and Borders Bill and during this Bill, age assessments have been talked about at 2 am and just after midnight. I am truly grateful to the usual channels for hearing my plea about not being last on the agenda again.

I am grateful also to the noble Baronesses, Lady Lister, Lady Neuberger, Lady Brinton, and the noble Lord, Lord Coaker, for their support of these amendments. This is not the level of legislative scrutiny—which we should have in Committee—that we owe to children. There were some questions put in Committee to which we did not get full answers, and I hope the Minister might provide them today.

The Bill significantly restricts any legal avenues for challenging an incorrect age determination. The appeal mechanisms instituted by the Nationality and Borders Act, though they have not yet been implemented, will now be disapplied. Following government amendments at this late stage, judicial review will also be limited to such a narrow scope as to make it impossible for a potential child to challenge the assessment of their age based on evidential fact.

All the while, if the Home Office were to inaccurately assess a child to be an adult, the implications would be disastrous and irreversible. A child would face entering an adult system alone, where they would be detained with adults before potentially being removed to a third country with no safeguards in place, perhaps without ever encountering a child protection officer. This is simply absurd, but to remove all legal safeguards and weaken a putative child’s access to justice, when the implications are so grave, is as horrifying as it is immoral.

We must not forget that the Home Office does indeed get age assessments wrong. Based on the Home Office’s own data, we can see that last year nearly two-thirds of all age dispute cases were found to be children. Currently, no method exists that can determine accurately and consistently whether a person is a child; that fact is well acknowledged by the Home Office and is clearly there in the children’s impact assessment that we got yesterday. Therefore, it is understandable that subjective and visual age assessments by immigration officers can lead to inaccurate judgments.

Because of this fact, a potential child must not be disqualified from a judicial review on whether their age decision was wrong on the basis of fact and judicial review must serve as a barrier to a child’s removal. Not to permit the courts to grant relief when the verifiable age of a child is available would allow the Government to proceed with the removal of a child when they know their decision was flawed. Last year, this would have meant over 1,000 unaccompanied children could have been eligible for removal to a third country. A child should not be removed from the UK on such a fallible basis. For the sake of children, this cannot be allowed to stand, and that is reason enough why access to judicial review should be there.

[Viscount Hailsham (Con)]

I have been saying—and I hope to reinforce this point—that I have one anxiety. As I understand the amendment, it confines the right of appeal to the grounds set out in Clause 56(5), which exclude an appeal on the basis that there has been a mistake of fact.

[The Lord Bishop of Durham]

I was about to sit down, but I will note that. I beg to move.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the right reverend Prelate and the noble and learned Lord, Lord Hope of Craighead, for bringing back these amendments. I am also grateful to the Home Office for finally publishing its child rights impact assessment yesterday afternoon although, I must say, getting it has been like pulling teeth.

However, on age assessment and other children’s rights issues, it reads more like an attempt at post hoc justification than a serious analysis of the implications for children’s rights. The initial reaction from the children’s sector is damning. That it continues to use misleading statistics on age assessment that were challenged in Committee is disappointing, to put it mildly.

In Committee, I asked for an explanation of

“why the Government have ignored the very clear advice of their own advisory committee on the question of consent”,

raised by Amendment 161. The Minister’s response was:

“Of course we consider the advice”,—[Official Report, 12/6/23; cols. 1806-16.]


but the fact is that Clause 57 represents a rejection of that advice. Will the Minister explain why, having considered the expert advice, the Government then rejected it? In effect, their approach is that of guilty until proven innocent but, as we have heard, Clause 56 will make proving innocence—or, more accurately, that one is a child—much more difficult than now in what is increasingly a culture of disbelief.

The limitations on appeal and JR rights are, as the JCHR points out and despite what the CRIA says, clearly not in any child’s best interests. Likewise, the UN Committee on the Rights of the Child has expressed concern and recommended that age-disputed children should not be removed to a third country. I asked in Committee what the Government’s response is, but received no reply; nor was it explained what steps would be taken to ensure the following, in the words of the supplementary ECHR memorandum, echoed in the CRIA:

“The appropriate support and facilities will need to be in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad”.


It is difficult to believe that effective participation would be possible, even with support. We need, at the very least, to know what that support would be. Even if the child managed to challenge the decision successfully from abroad, they could then order only a reassessment. How would that be meaningfully carried out if the child is no longer in the UK? If the child were then reassessed as a child, would they be moved back to the UK?

I have a final question. The Nationality and Borders Act provided for a new statutory right of appeal to the First-tier Tribunal to replace judicial review as the means to challenge age assessment under that Act, so that it

“can be resolved as swiftly as possible”

and

“to ensure that genuine children don’t slip through the net and are classed as adults”.

Over a year on, this section has not been commenced. Can the Minister say why and set out the Government’s timetable for doing so, or has it been jettisoned before it has even come into force?

[Viscount Hailsham (Con)]

My Lords, I will speak briefly in support of Amendment 156A, although I regret the limited nature of the appeal contemplated by that amendment. I very much welcome Amendment 158A, in the name of the noble and learned Lord, Lord Hope.

As a matter of principle, I am very much in favour of giving individuals the right of appeal although, as I said when I intervened on the right reverend Prelate, I fear that his amendment provides for a more limited right of appeal than I would wish.

A decision on the age of an individual is critical in determining a person’s status under the legislation. I am concerned that, in many instances, the original decision about age will be made in a somewhat perfunctory manner. I imagine that immigration officers may get rather impatient and make rather perfunctory decisions. At the end of the day, age is a matter of evidence and I cannot find any persuasive reason why the original position on age should not be challenged. In my view, the right of appeal should extend to appeals based on the ground that the relevant authority had made a mistake of fact. That is what the noble and learned Lord seeks to achieve in Amendment 158A. However, if I have correctly understood the amendment and its relation to the Bill, the grounds of appeal are limited to those set out in Clause 56(5) of the Bill as it stands. The grounds specified there are essentially judicial review grounds—for example, that there was some procedural unfairness, or the ground of irrationality—and appeals based on fact are expressly excluded. I regard that exclusion as highly regrettable.

To meet some of the anxieties that I fear will be expressed by the Minister regarding my comments and the amendments, I make this point as well: the rights of appeal could be abused, and I would therefore like the burden of establishing the appeal to be on the appellant. It must be for them to satisfy the relevant appellate body that the grounds of appeal are made out. That may in fact be the existing law and practice—it has been such a long time since I practised in that field of law that I simply do not know. If it is not, it should be, and it would meet many of the anxieties likely to be expressed on the government Benches.

[Baroness Butler-Sloss (CB)]

My Lords, I understand very well the child rights impact assessment on this issue. Naturally, the Government are concerned about people’s ability to pretend that they are under age when they are not, but that does not in fact deal with the underlying problem: there are a large number of children from countries outside Europe who mature much more quickly, certainly quicker than children in western Europe.

I remember going on a visit to Safe Passage, which was offering a drop-in centre for young men under 18. A number of those I met, and whom Safe Passage was absolutely satisfied were under 18, had beards or moustaches. If such person is interviewed by the Home Office, will it not immediately assume that a moustache or beard absolutely means that they are over 18? In the case of some of these young people, that will be incorrect.

I also remain very concerned about the issue raised by the noble and learned Lord, Lord Hope, in relation to Clause 5. If the issue is, as I suspect it will be, that they got it wrong, it is not necessarily—or probably not ever—an issue of law but a question of fairness. It is a question of dealing fairly and in the best interests of those who are genuinely under 18.

Reading through the child impact assessment, what depresses me is the suggestion regarding the extent to which the Government are following the principles of the Children Act—which every Government in my lifetime have followed—and looking out for the best interests of children. They are saying it again and again and, quite simply, doing the exact reverse. This is extraordinarily depressing.

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[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, as we have heard, these amendments take us on to the provisions regarding age assessments. Given that, under Clause 3, unaccompanied children will be treated differently from adults, and given the obvious safeguarding risks of adults purporting to be children being placed within the care system, it is important that we take steps to deter adults from claiming to be children and to avoid lengthy legal challenges to age-assessment decisions preventing the removal of those who have been assessed to be adults. Receiving care and services reserved for children also incurs costs and reduces the accessibility of these services for genuine children who need them.

Assessing age is inherently difficult, but it is crucial that we disincentivise adults from knowingly misrepresenting themselves as children. Our published data shows that, between 2016 and March 2023, there were 8,611 asylum cases in which an age assessment was required and subsequently resolved. Of those cases, nearly half— 47%, or 4,088 individuals—were found to be adults. This percentage aggregates initial decisions on age taken upon arrival, comprehensive assessments and the outcomes of legal challenges. I make clear that only those assessed to be adults will fall within the duty.

Accordingly, Clause 56 disapplies the right of appeal for age assessments, which is yet to be commenced and was established in Section 54 of the Nationality and Borders Act 2022, for those who meet the four conditions in the Bill. Instead, those wishing to challenge a decision on age will be able to do so through judicial review, which will not suspend removal, and can continue from outside the UK after they have been removed. In answer to the noble Baroness, Lady Lister, I say that we are keeping the commencement of Section 54 under review, but I am unable to provide a further update at this stage.

Clause 56(5) provides the basis on which a court can consider a decision relating to a person’s age in judicial review proceedings. It provides that a court can grant relief

“only on the basis that it was wrong in law”,

and must not do so on the basis that it

“was wrong as a matter of fact”.

This distinguishes the position that the Supreme Court adopted in its judgment in the 2009 case of the Crown on the application of A v London Borough of Croydon, page eight. The intention is to ensure that the court cannot make its own determination on age—which should properly be reserved for those qualified and trained to assess age—but instead can consider a decision on age only on conventional judicial review principles.

[Viscount Hailsham (Con)]

The court will receive evidence from people who have made these assessments, and courts are well versed in determining which evidence is to be preferred.

Illegal Migration Bill

Viscount Hailsham Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I speak to Amendment 76 which, in my view, sets out in the clearest possible terms the principles that should be applied to the power of detention presently under discussion. Indeed, if I have correctly understood the law—of which the noble Lord, Lord Carlile, reminded us—Amendment 76’s principles are principles that are currently being applied by the courts, and will be applied unless this Bill is enacted in its present form.

It is perhaps worth reminding the House of the strategic purpose of the Bill: to deter would-be migrants by the prospect of deportation to their country of origin or to a safe country. In my view, that is a perfectly legitimate objective; nation states are entitled to regulate the flow of migration. However, I also think that, in the modern world, that can be done only by the collective action of countries working together. That may require—I think it probably will—the substantive amendment of existing international agreements and conventions. I think there is very little prospect of unilateral action succeeding, save on the margins of the problem. The policy that underpins this Bill will fail because it will not be possible to deport migrants in sufficient numbers to constitute an effective deterrent.

Given that, I am extremely concerned about the ability of a Secretary of State to use a power of detention to reinforce, rather than to implement, the policy of deterrence. That would be an improper use of the power of detention. I am also deeply concerned that the power of detention as contemplated by the Bill will be used as an administrative convenience: detention without obvious limits of time in the hope that some possible prospect of deportation in respect of an individual will turn up. In my view, that would be highly objectionable.

I come to the four detailed provisions in Amendment 76. They should be considered individually. I will not repeat each one, because the noble Lord, Lord Carlile, has read them out, but just take the first and ask a sensible question:

“the Secretary of State must intend to remove the person being detained and can only use the power to detain for that purpose”.

That seems to be a very fair statement of the law, and we are entitled to know from my noble friend the Minister what the principled objection to such a statement is. The same question applies to each of the remaining three provisions. I will not read them out because the noble Lord already has. Each one of them seems to me to be wholly right as a statement of principle, and this House is entitled to know the principled objection to them if there is one.

As it happens, I think I know the principled objections—at least I know the objections—because they are set out in paragraph 95 of the Explanatory Notes. The Government wish to give the Secretary of State, rather than the courts, the right to determine the length of time deemed to be reasonable for a period of detention. Moreover, when early deportation is not practicable, the Bill will give the Secretary of State the power to detain for such a period that the Secretary of State deems reasonable. That is a huge enlargement in the discretionary powers of a Secretary of State, and I do not want to give any Secretary of State, least of all the present Home Secretary or her immediate predecessor, such additional powers. In my view, the judgment of the legality of detention should be left to the judges and the courts, in applying the principles that are so well set out in Amendment 76.

[Lord Hacking (Lab)]

My Lords, I have been asked by my Front Bench not to speak at all and, if I break that, to speak in the shortest possible terms. I can do that, because I completely support the noble Lord, Lord Carlile, in the speech that he just gave and most particularly in his admonishing the Government for not withdrawing this Bill. I have read the two court judgments and can say only that, until or unless the Supreme Court takes a different view, Clause 2 is a nullity, and that is the heart of the Bill.

--- Later in debate ---

A person’s detention will continue to be subject to judicial oversight. We are not removing the involvement of the courts, as some in the House may have suggested. That oversight will continue by way of a writ of habeas corpus in the first 28 days, via an application for bail to the First-tier Tribunal, or a judicial review after that initial 28-day period. In any such judicial review proceedings, the Secretary of State’s assessment as to whether a period of detention is reasonable can be challenged on conventional public law grounds, including whether the decision is Wednesbury unreasonable. To be clear, the Bill explicitly does not, as has previously been suggested, provide for indefinite detention. The Government’s aim is to ensure that people are not held in detention for any longer than is absolutely necessary, as I have already said.

[Viscount Hailsham (Con)]

If my noble friend is right, he is effectively saying that people who are detained will be released if there is no prospect of deportation. If that is right, the policy of deterrence is entirely without merit.

[Lord Murray of Blidworth (Con)]

My noble friend is right, in that it is one of the Hardial Singh principles that, if there is no reasonable prospect of removal, that person should not be detained. But I cannot agree with him that the policy of deterrence is not right, because it is clearly the Government’s intention to remove any illegal entrants to a safe third country. In answer to the noble Lord, Lord Carlile, I add that the Court of Appeal unanimously agreed with that being lawful as a matter of principle.

We recognise that circumstances can change. Where that is the case, detention must be reviewed. If it is considered that the anticipated period of detention is not reasonably necessary, the individual will be bailed. This reflects the existing legal and policy position on the use of detention.

It remains the Government’s view that the provisions in Clause 11 provide an appropriate balance between the respective roles of the Home Secretary and the courts. Accordingly, I ask the noble Lord to withdraw his amendment.

Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Viscount Hailsham Excerpts

Tuesday 13th June 2023 Lords Chamber

I do not know whether noble Lords will be aware of the extensive publication of this change; why on earth does the Minister think that is acceptable, in particular the way the Government justify themselves in answer to the criticisms of the Secondary Legislation Scrutiny Committee? I will tell noble Lords—

[Viscount Hailsham (Con)]

I have not seen the additional Explanatory Memorandum. Would the noble Lord tell us what additional material is in it? If it is substantial, surely it should be provided to all Members of this House before the debate proceeds.

--- Later in debate ---

[Lord Pannick (CB)]

The Government can table a new statutory instrument any time they like. They are perfectly entitled. They can table a statutory instrument and invite us to consider it—or, far better than that would be to produce primary legislation which we can debate properly and can amend if we think it appropriate to do so and which will then go back to other place for it to consider.

If it does not agree with us, we will, I am sure—as the noble Lord, Lord Reid, rightly said—follow our customary practice and give way, because it is the elected House. What is so objectionable about this is that all of those procedures are removed. All we can do, as he said, is express regret: we are very sorry about this. Well, I express regret that the Labour Front Bench is not prepared to see through the implications of its own view that this is a constitutional outrage. It is something that we should stand up against and vote against.

[Viscount Hailsham (Con)]

My Lords, with little exception, I agree with what the noble Lord, Lord Pannick, has said. I start by having considerable sympathy with the motives that have caused the Government to come forward with this statutory instrument. However, for the reasons that were advanced by the noble Lord, Lord Coaker, I feel that the process is very defective. However, again, for constitutional reasons, which I shall mention very briefly, I cannot support the fatal amendment.

That, in summary, is my position; if I may, I shall elaborate a little further. So far as the motives of the Government that lie behind the statutory instrument are concerned, I share very many of these views, as indeed does the noble Lord, Lord Pannick. In a free society, individuals have a right to demonstrate. However, their fellow citizens have a right to go about their daily business without unreasonable obstruction. I fear that, increasingly, we are seeing on the part of demonstrators a disregard for the obligations they have to their fellow citizens.

So I can well understand the motives that activate the Government in bringing forward the changes in the statutory instrument. However, for the reasons advanced by the noble Lord, Lord Coaker, I have very real reservations about the process that is being adopted. The process and its defects were identified by my noble friend Lord Hunt of Wirral. He is entirely right, and his report is extremely direct on the subject. The statutory instrument is in fact designed to reverse the defeat in this House earlier this year.

If that is a desirable thing to do, it should be done by primary legislation. That is the point made by the noble Lord, Lord Pannick. Amendments made to a Bill by this House on Report can always be considered further in the House of Commons and, where appropriate, they can be the subject of ping-pong; that is the proper way forward.

A statutory instrument is an unamendable legislative device and, in my view, one that should not be used to make significant changes to the law, in particular to the criminal law. So one needs to go to the purpose of this statutory instrument. The Home Secretary set it out in yesterday’s debate in the House of Commons. At column 55, she set out the four purposes of the instrument, and said later, of the police, that

“we are trying to clarify the thresholds and boundaries of where the legal limit lies, so that they can take more robust action and respond more effectively”.—[Official Report, Commons, 12/6/23; col. 74.]

Now, that raises at least two pertinent questions. Either this statutory instrument, in effect, does no more than tidy up existing legislation and ensure that existing case law applies equally across the statutory waterfront, or it is intended to make significant changes to existing law. In the first case, it must be doubtful whether the statutory instrument is required; in the second case, if, as I suspect, the statutory instrument does make substantial changes to existing law, it should be done by primary legislation—and that is what this House intended to do in January.

So, finally, we get back to process, which is fundamental to tonight’s debate. I share all the reservations expressed in the amendment of the noble Lord, Lord Coaker. They constitute good reasons why the procedure adopted by the Government is flawed. I would like to think that if the amendment is passed—and in all probability, I will vote for it—the Government will withdraw the statutory instrument and resort to primary legislation.

I am afraid that I cannot support the fatal amendment moved by the noble Baroness. Here, I find myself in agreement with the views expressed by the noble Lords, Lord Reid and Lord Rooker. The House of Commons passed this statutory instrument last night by a very substantial majority. The fatal amendment has a much more dramatic consequence than those occasions when the House amends a Government Bill. In such cases, the Bill can be further considered by the Commons. However, if this House carries the fatal amendment, the statutory instrument is killed. That goes beyond that which an unelected House should in general do.

[Lord Paddick (LD)]

The noble Viscount seems to be saying that the difference here is that if this House votes down a measure in primary legislation, it goes back to the Commons to be reconsidered. That is not what happened in this case: the amendment was introduced in the House of Lords, not the other place, we voted it down and it disappeared. It did not go back to the other House. Exactly the same thing will happen tonight if noble Lords vote for the fatal amendment.

[Viscount Hailsham (Con)]

I entirely understand this point, but we need to draw a distinction between amendments that this House makes in Committee and on Report, when it is possible for the House of Commons to consider again and come back to this House, and—

[Lord Paddick (LD)]

Will the noble Viscount give way?

[Viscount Hailsham (Con)]

May I just finish this point?

In this particular case, if we pass a fatal amendment, as advocated by the noble Baroness, we will be killing a statutory instrument which was supported by the House of Commons last night. I am very unwilling to support that proposition as a precedent, and I agree with the views expressed by the noble Lords, Lord Rooker and Lord Reid.

I say this as one who was in the House of Commons for 30 years. I am under no illusion as to the nature of the House of Commons. My father used to speak and write about the “elective dictatorship”. He was entirely right, but at the end of the day we have to decide where authority lies, and however imperfect its authority may be down the road, it does have the authority of an election, and we do not have that. I give way to the noble Lord if he wishes to intervene further.

[Lord Paddick (LD)]

I am very grateful, but the noble Viscount makes another error in his assertions. This was not an amendment to the Bill introduced by the Opposition in this House. It was a Government amendment introduced in this House, which was defeated by this House, which means that the amendment could not then be considered by the House of Commons. Therefore, there is no practical difference between the voting down of that Government amendment, killing it completely, and voting for a fatal amendment to the statutory instrument, which would kill it completely.

[Viscount Hailsham (Con)]

The noble Lord is cavilling at this point. We are, in a sense, talking about principle. Where does authority, in the end, lie? It lies down there because they are elected. It does not lie here because we are not elected. It is for that reason that I shall vote for the amendment moved by the noble Lord, and I do not feel able—although I agree with a great deal that the noble Baroness said—to vote for the fatal amendment.

Illegal Migration Bill

Viscount Hailsham Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

This is an extremely important Bill. I say to the Minister that he owes it to your Lordships to explain to us exactly the meaning of that statement. He is a good lawyer, so he should be able to do that. He should also list before this Committee—so that we can consider that list as we debate the rest of this part of the Bill—which clauses, in his view, fall within the European Convention on Human Rights, which do not and, in the spirit in which we debate things in your Lordships’ House, which ones he does not know about. It is only when we understand that statement properly that, in my view, we can have an educated debate about this part of the Bill.

[Viscount Hailsham (Con)]

My Lords, I have only a very brief intervention to make, but I want to speak to Amendment 4. I have two questions for the Minister which I think require serious clarification. First, do the Government accept that the Bill, if enacted, should be implemented in such a way as to comply with the convention rights that are itemised in Amendment 4? We are entitled to know what the thinking of the Government is. Do they intend that the Bill, if enacted, complies with convention rights?

The second question is contrariwise and actually is a suspicion. What is the purpose of the purpose test set out in Clause 1(2)? My suspicion is that the purpose test is designed to displace the convention rights if they come up against the Bill, if enacted. In other words, is the purpose test designed to override convention rights? I think this House is entitled to a very direct answer on both those questions.

For myself, let me make this absolutely plain to the Government. If Amendment 4 is put to a vote at any stage, I shall vote for it, because I believe that this Government and this country should comply with convention rights. If the purpose test is designed to override convention rights, I shall vote against it if given the chance.

[Lord Kirkhope of Harrogate (Con)]

My Lords—

--- Later in debate ---

It is, of course, true that the UK’s international reputation matters; but I also think that the reputation of Parliament matters at home to UK citizens. I do not think that we should forget the widespread, huge frustration when the public are told, “You cannot do that”.

[Viscount Hailsham (Con)]

Is the noble Baroness really suggesting that this country should depart from treaty obligations without much of a qualm?

[Baroness Fox of Buckley (Non-Afl)]

Having no qualms is something that I would never do, but I am also suggesting that having qualms, or using those qualms, to undermine what the British public would like to do is something that other people should have qualms about. I think that people are tearing their hair out outside of here being told, “You cannot do that; you may have voted for that, but that cannot happen”. When international treaties are used in that instrumental way—which is the way I think they are being used—that is difficult.

May I ask noble Lords to put aside the specifics of this Bill just for one moment? I know that people are very emotional about this Bill, but what if, on another topic, the UK Government—perhaps another Government, not this one, whom more people in this House might be sympathetic to—brought in a different Bill? Just imagine if such a worthy Government, with a popular mandate, tried to bring in a radical, novel, innovative law; for example, enhancing workers’ rights or improving women’s reproductive rights—things that I would support. Just imagine if that Government tried to bring that Bill in and it got to the Lords, where they were told, “You cannot do that because there are all sorts of international treaty clauses that prohibit you doing it”. Imagine your frustration: would you break your promise to the electorate in that instance? I just want us to acknowledge that asking the Government to break a promise on the small boats—

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[Lord Murray of Blidworth (Con)]

That is correct: the ECHR memorandum is one of the documents prepared to support the Bill in its passage through Parliament. Obviously, if a matter of interpretation were required, it is the sort of material that those looking for an interpretation might be minded to refer to. Indeed, it is open to those in Parliament to refer to such documents. It is, of course, right to say that the ECHR memorandum is a standard part of the package in relation to public Bills—so, in that sense, it has regular status.

[Viscount Hailsham (Con)]

Before the Minister leaves this part of his address, will he tell the House whether it is the intention of the Government that the implementation of the Act should be compliant with all the conventions that are set out in Amendment 4? Do the Government intend to comply with those conventions? This House is entitled to know.

[Lord Murray of Blidworth (Con)]

As I have already outlined, it is clear that there is nothing in the Bill that would require the UK to breach its international obligations. The UK takes compliance with those obligations very seriously. As for the other international instruments referred to in these amendments, they have not, by and large, been incorporated into UK domestic law, and we should not seek to do so in this Bill through the back door.

Iranian Islamic Revolutionary Guard Corps

Viscount Hailsham Excerpts

Tuesday 23rd May 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for his analysis.

[Viscount Hailsham (Con)]

My Lords, what is the practical effect of proscription in the case of the guard corps?

[Lord Sharpe of Epsom (Con)]

That is a very good question. I am not entirely sure exactly what else it would do above and beyond what we have already done with the sanctions and so on.

National Security Bill

Viscount Hailsham Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Viscount Hailsham (Con)]

On the question of numbers and definition, what is the essential definition of exceptional case funding and how many cases have given rise to such a relief?

[Lord Bellamy (Con)]

I do not have the exact definition in front of me. It is a matter for the director of the Legal Aid Agency to decide. There is guidance on this, which applies in particular to cases of inquest and other areas where convention rights are at issue. I can supply my noble friend with further details in due course.

[Viscount Hailsham (Con)]

The number of cases would be very helpful.

[Lord Bellamy (Con)]

I do not have that information with me, but about three-quarters of applications succeed.

At the risk of disturbing the atmosphere of good will that has, to an extent, prevailed this afternoon, your Lordships would have expected me to explore with the Government whether there can be any further movement on this clause and I am sorry to say that, subject to the important exception for victims of domestic abuse in relation to family and housing matters, they adhere to the clause and respectfully present it to the House.

The amendments tabled by the noble Baroness, Lady Ludford, seek to remove these clauses from the Bill altogether. The Government’s position is that the measures are necessary to ensure that our limited resources for legal aid funding are not directed towards individuals who attack society and democracy and, through their actions, commit acts of terrorism that seek to threaten and undermine the very democratic institutions which provide the benefit of legal aid. It is right that access to legal aid should therefore be subject to the provisions of this clause. Again, I understand that the Labour Party, in principle, accepts that approach.

It is certainly possible to argue, as the noble Baroness did, that if this applies to terrorism, why does it not apply to murder, the abuse of women, drug trafficking and other offences? Certainly, one can always advance an argument about where you draw the line. The line is drawn here at terrorism because of its particular threat to our society and democracy; that is the Government’s reasoning. As I have just said, it is not a blanket ban on civil legal aid because the exceptional case funding route ensures—in compliance with our obligations under the convention—that legal aid remains available when it is most needed to ensure access to justice.

Amendment 188, tabled by the noble Lord, Lord Pannick, would limit the restriction to where an offender has been sentenced to a term of imprisonment of seven years or more. I acknowledge of course the noble Lord’s concerns, but the Government oppose this amendment on the following grounds. The Counter-Terrorism and Sentencing Act 2021, introduced following the Fishmongers’ Hall and Streatham Hill terrorist attacks, expanded the sentencing powers of courts in relation to terrorist offenders and created more restrictive provisions for terrorist offenders whose offences carry a maximum sentence of more than two years. So, the two-year benchmark is already baked into legislation, and the Government feel that it is the appropriate benchmark in this instance.

The noble Lord’s seven-year sentence proposal would mean that a number of quite serious terrorism offences would escape: for example, the breach of a TPIM notice. It would also—by reference to sentencing, as distinct from the statutory definition of an offence—create quite a subjective difference between offenders when one has got more than the other: one is a bit above and one is a bit below, perhaps because one has had more previous convictions than the other, or for whatever reason. So, the Government think that the two-year benchmark in existing legislation is logical, defendable and clear and that it should remain. So, with regret, the Government are unable to accept Amendment 188 in the name of the noble Lord, Lord Pannick.

Amendment 187, tabled by the noble Lord, Lord Marks, would make the restriction not apply if the terrorism offence of which the individual had been convicted had no relevant factual connection with their application for legal aid. We quite understand the noble Lord’s intention behind that amendment, but, again, the Government cannot accept it. As the noble Lord, Lord Ponsonby, said, this is a point of principle. The Government have considered with great care the proposal put forward and consider that the fact of a conviction for a terrorist offence carrying a sentence of more than two years is a ground for restricting the route by which legal aid is granted, so we are unable to accept this amendment.

However, we have tabled government Amendments 182, 183, 184 and 186 to create an exception so that the restriction will not apply where a terrorist offender is a victim of domestic abuse and is applying for legal aid related to family and housing matters within a relevant time period. That would include such matters as pursuing protective injunctions in child custody cases, as well as the loss of a home or homelessness. Again, the question arises: if you have extended it there, why do you not extend it somewhere else? The answer, I think, is that one has to draw a line somewhere. Those are particularly serious issues in society as it stands, and that seems to the Government to be a sound basis for making an exception. It is not our position that it is relevant or wise to create any further exceptions.

Eurostar St Pancras: Border Control

Viscount Hailsham Excerpts

Tuesday 28th February 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I simply do not recognise the noble Lord’s characterisation. Border Force has deployed in Paris e-gates which, in the last 12 months, have processed more than 1.2 million passengers. The service standard of a wait of no longer than 25 minutes for Border Force officers has been maintained throughout that period. There are no delays which are the fault of Border Force.

[Viscount Hailsham (Con)]

My Lords, in the interests of increasing passenger flow and in the spirit of co-operation, would it not be possible to agree a single, jointly manned border control?

[Lord Murray of Blidworth (Con)]

As my noble friend will recall, the agreement at the time of the implementation of the Channel Tunnel was an international one between the United Kingdom and the French Republic. The agreement was that we should have controls in the way that we do. As I say, they work well, and the arrangements are successful.

Public Order Bill

Viscount Hailsham Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Viscount Hailsham (Con)]

I am very grateful to my noble friend for giving way, but I am afraid that he is wrong about the absence of suspicion. When I was a special constable 40 years ago—I do not have the experience of the noble Lord opposite—I would stand in Trafalgar Square and get messages on the police radio such as, “Race code 3 or race code 9 coming down in a beaten-up Vauxhall: worth a stop.” That is not suspicion; that is arbitrary stopping.

[Baroness Meacher (CB)]

My Lords, we are not focusing right now—nor should we be, in my view—on the issue of the lack of suspicion, although that is fundamental to Clause 11. Let us focus for a minute on Clause 10, which is about stops and searches without suspicion. Those stop and search powers were introduced for police, necessarily and very importantly, to enable them to stop people who they believe may be carrying a knife or another potentially dangerous weapon. I fully support those stop and search powers, but there is not a strong evidence base that the stop and search powers in that context are actually effective in preventing violent crime. So the idea of extending those powers to stop and search people in case they have a placard—a piece of paper—is completely and utterly disproportionate.

In a democratic society, it is utterly wrong to give disproportionate powers to our police to interfere with the fundamental right in our democracy to protest and to go out on the streets to express our opinions. If we forget the issue of suspicion, Clause 10 is utterly disproportionate, anti-democratic and unacceptable, and it will lead to further discordance between the police and lots of communities where we need to build community support for our police. It will have very detrimental effects on all sorts of people across our society. It is for these reasons that I, among others—I hope the whole House—would support withdrawing Clause 10 from the Bill.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

I speak as the mother of a journalist, so I have a vested interest here, but journalists do not go along to protests to join them but to watch and report on them. The Hertfordshire police and crime commissioner, David Lloyd, with whom I had the displeasure of sharing a panel the day after this all happened, said that protesters should not have the oxygen of publicity. That was his attitude: “Freedom of the press is fine, but not for protesters.” That is utterly unreasonable, as are the noble Lord’s comments. I support this very strongly. I do not see why anyone here would have a problem with it, except the Government. What are they frightened of? What do they think journalists will report that would look so bad for them? Obviously, almost anything.

[Viscount Hailsham (Con)]

My Lords, I support what the noble Lord, Lord Hogan-Howe, has said. This is really a matter of definition. We all agree that journalists should not be arrested while doing their job, but it is very difficult for a policeman to distinguish between A and B—

[Baroness Jones of Moulsecoomb (GP)]

They have cards.

--- Later in debate ---

[Viscount Hailsham (Con)]

Yes, but I do not think the noble Baroness has focused on the point that a lot of demonstrators would represent themselves as journalists to avoid the prescriptive provisions of the Bill. That is what the noble Lord, Lord Hogan-Howe, was talking about, and he is wholly right.

[Lord Hope of Craighead (CB)]

I thank the noble Viscount for giving way. The word “journalist” is not in the amendment—just “a person”, who is defined as “observing or otherwise reporting”. That is what it says, and it is very clear.

[Viscount Hailsham (Con)]

I appreciate that. I did not realise that the noble and learned Lord was intervening—I apologise for not sitting down at once. The point is surely that we are dealing with the need to protect journalists. The risk is that any demonstrator involved will say that they are a journalist or otherwise fall within the protection of this proposed new clause. That is what worries me.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, if anything illustrates why this amendment is needed, it is the last few exchanges. A number of noble Lords are already suspicious that people reporting on a demonstration are really malevolently pretending to be doing so. The noble Lord, Lord Hogan-Howe, said that the police have said to him that people will pretend to be reporting and asked how they would know. That is the difficulty. If the police start off suspicious that journalists are really just people pretending to be journalists to get away with locking on and being disruptive, we have a problem.

What this amendment will do, and it is important to do so, is to state that it is a legitimate pursuit to be reporting on a demonstration, whatever your opinion of the demonstration. I have heard people say that all the people reporting on a demonstration who are not officially working for the BBC or LBC are actually demonstrators, but there are people who are opposed to, for example, Just Stop Oil who are reporting on it because they are trying to get support against the demonstrators. That is what is ironic. The point is that they are reporting. In a democracy, we need to know about such things. One of the great things about technology is that you can sometimes see it and know about it because somebody is there reporting on it or filming it.

We should stick by the principle of journalistic freedom. Those people who say people pretend to be journalists to get off scot free show how the Bill is already poisoning the well and making anybody associated with a demonstration in any capacity seem dodgy. What is dodgy is making that conclusion.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, as the noble Lord, Lord Anderson, said, I support all but one of his amendments. The one I do not support is very minor and, out of an abundance of caution, I decided not to put my name to it. A particular point I wish to draw attention to arises from his Amendments 56 and 60, which deal with the trigger events for the pronouncement of these orders. The noble Lord seeks to take out the third, fourth and fifth trigger events. He is absolutely right to want to do so because of the breadth of the expression, and of a particular point that I will come to.

The third trigger event concerns carrying out

“activities related to a protest that resulted in, or were likely to result in, serious disruption”.

That phrase describes a protest, but the word “activities” is so wide that it raises real questions about the certainty of this provision. The same point arises in respect to the fifth trigger event.

The fourth trigger event contains quite an extraordinary proposition, which is that the person

“caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction”.

An offence is defined in statute. Everyone is presumed to know the law, so it is fair enough to mention the “offence” in that particular trigger event, but injunctions are directed to individuals; they are not publicised in the same way as offences. A person might have absolutely no idea that the other person in question was in breach of an injunction, of which he had no notice whatever. That is absolutely objectionable. On any view, the fourth trigger event should be deleted from both these clauses, but for broader reasons and those given by the noble Lord, Lord Anderson, which I need not elaborate on, I support his amendments.

[Viscount Hailsham (Con)]

My Lords, I will make three brief comments about these amendments. First, regarding the trigger points, I entirely agree with Amendments 56 and 60 from the noble Lord, Lord Anderson, which the noble and learned Lord spoke to. The reference to an injunction is particularly worrying because, for the reason the noble and learned Lord mentioned, members of the public would not be aware of it. In any event, what are or could be contemplated in the third, fourth and fifth trigger events are acts that are very remote from the mischief the Bill contemplates. Therefore, I very much hope that the amendments are put to the House, and I shall support them if they are.

Secondly, your Lordships need to keep in mind that the test of necessity, which is dealt with in Clause 20(1)(d), is quite a high bar. I deal with it in interim orders made by the regulatory panels, which are fully aware that “necessity” is different from “desirability” and requires quite a high threshold.

My last point is a query to the Minister, if he would be so kind. It is a very long time since I dealt with complaints before magistrates’ courts, so I apologise for not really being familiar with the procedure. In any view, these SDPOs are very serious. Does the complaint, which presumably has to be made both by the court and to the person named, specify the concerns felt by the senior police officer? Does it specify the relief being sought in the order itself? I assume that these are inter partes hearings, not ex parte. Does the person against whom the order is sought have the opportunity to make representations, give evidence, be represented and object to the relief being sought? This is ignorance on my part, but I fancy that quite a lot of your Lordships would like to know the procedure being invoked.

[Lord Paddick (LD)]

My Lords, as we have heard, most of the amendments in this group seek to restrict the proposed provisions in serious disruption prevention orders so that they are more in line with terrorism prevention and investigation measures. TPIMs are primarily designed for instances where the case against someone who is believed to be a serious threat to society—a suspected terrorist—is based on intelligence rather than evidence that could be given in open court. They are supposed to be a temporary measure while attempts are made to secure the evidence necessary to convict the person of a criminal offence. SDPOs as originally drafted were potentially limitless banning orders preventing people from involvement in protests, even if they had never physically been present at a protest before and, in the case of Clause 20, had never been convicted of a criminal offence.

As the noble and learned Lord, Lord Brown of Eaton- under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights if a court was satisfied on the balance of probabilities—depriving people of their human rights on the weakest of evidential tests. Even in the case of Clause 19, on serious disruption prevention orders on conviction, where the court is convinced beyond reasonable doubt that a criminal offence has been committed, the court needs to be satisfied only on the balance of probabilities that the offence was protest related. It then has to be satisfied—again, only on the balance of probabilities—of a second involvement in a protest. For example, if someone had contributed to crowdfunding to pay for coaches to take protesters to London and, in the end, there were not enough protesters and the coaches never went, but serious disruption was likely to have resulted if they had and the coaches had been full of protesters, on the balance of probabilities the court could impose an SDPO.

That many of the amendments in this group attempt to weaken SDPOs, making them merely outrageous rather than totally unacceptable, is no reason to support them—perhaps with the exception of Amendment 56, which seeks to limit those who would be made subject to an SDPO and which, frankly, goes nowhere near far enough. The House should not make legislation less bad when it has an opportunity to oppose it in its entirety. The noble Lord, Lord Anderson, expressed his support for that by signing Amendment 59.

As His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported in its review of public order policing, the police’s view was that courts would be reluctant to deprive individuals of their right to protest by granting protest banning orders in the first place, and even more reluctant to impose any significant penalty should someone breach an order by peacefully participating in a future protest. If they caused serious disruption, they would be convicted of a substantive public order offence. As a result, SDPOs were seen as unworkable and having no real deterrent effect.

We support the amendments in the name of the noble Lord, Lord Ponsonby of Shulbrede—to leave out Clauses 19 and 20—which have been signed by me, the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti. We cannot support depriving anyone of their human rights on an evidential test of the balance of probabilities, especially when the police believe that the courts would be unlikely to impose SDPOs or a deterrent penalty for any breach. We will support the noble Lord when, we hope, he divides the House on Amendments 59 and 63.

--- Later in debate ---

[Viscount Hailsham (Con)]

I interpreted that subsection to mean that the statement could be in writing if the person did not attend. Is that correct?

[Lord Sharpe of Epsom (Con)]

I will need to clarify that but, given the other things that I have said, it would imply—I stress “imply”—that the person needed to be there, but I will come back on that point.

I also stress that those who make their voices heard without committing offences or causing serious disruption would not be affected.

The evidential threshold of SDPOs was also the subject of discussion. I am sure that many noble Lords support the courts’ imposition of injunctions which are made on the civil burden of proof and ban large numbers of people protesting in certain locations, including, on occasions, “persons unknown”. The burden of proof is the same for SDPOs, and they are made against known individuals whose actions have shown that an order is necessary.

Noble Lords also raised the question of how SDPOs will be enforced. As I hope I conveyed in Committee, it will ultimately be for the courts to place necessary, proportionate and enforceable conditions on protesters subject to an SDPO and for the police to exercise any powers of arrest in relation to breaches. However, I assure the House that the Government will be setting out statutory guidance for SDPOs to aid the police and courts in due course.

The use of SDPOs is critical when equipping the police with powers to ensure that they can take proactive steps against prolific protesters. So in removing SDPOs fully from the Bill, we will continue to see the police struggle to get ahead of those protesters who are hell- bent on repeatedly inflicting serious disruption.

The noble Lord, Lord Paddick, mentioned the HMICFRS’s comments about banning orders not being compatible with human rights, but the report from the policing inspectorate considered only orders that would always ban an individual protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption, so depending on the individual circumstances this may mean that the court will not consider it necessary to stop individuals attending protests.

Nevertheless, as I made clear when we discussed these measures in Committee, I recognise the strength of feeling expressed by your Lordships. In that vein, I turn to the amendments tabled by the noble Lord, Lord Anderson. I thank him for his continued engagement on this Bill as a whole. His amendments all seek to amend the SDPO regime in some way, be it limiting the trigger events for an order, limiting the maximum duration of an SDPO, limiting the requirements that can be imposed on an individual or amending some of the guidance that is to be issued by the Secretary of State concerning these measures. We still believe that SDPOs are an important and useful tool for stopping repeat protesters committed to causing disruption. For this reason we regrettably cannot support the amendments proposed, which we assess amount to a substantial dilution of the Bill’s effectiveness. However, we recognise the sentiment behind them, as well as the other concerns raised, which is why I committed to take the matter away.

As a result of that consideration, the Government have tabled amendments which seek to allay some of the concerns expressed by your Lordships. We have tabled an amendment which removes the electronic monitoring provisions from the Bill, meaning that no individual subject to an order would have the requirements and prohibitions imposed monitored electronically. This was a particular concern of your Lordships, and we have responded accordingly. The second amendment reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years. The final amendment addresses a criticism made by your Lordships concerning the renewal of an order. Indeed, many noble Lords expressed concerns that an order could be continuously renewed. The amendment we have tabled therefore addresses this by setting a limit on the number of times an order can be renewed to only once. It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs. I encourage all noble Lords to support the amendments in the Government’s name and to reject the others in this group.

Police Misconduct Cases

Viscount Hailsham Excerpts

Monday 6th February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, on the latter point, I think the police forces have accepted all the recommendations. As regards the consistency of decision-making, that is one of the things that the dismissal review panel is going to consider. The first term of reference is to:

“Understand the consistency of decision-making at both hearings and accelerated hearings”,


so the answer is yes.

[Viscount Hailsham (Con)]

My Lords, I declare an interest as a legal assessor for regulatory panels. My noble friend will know that Parliament has established an independent regulatory panel in respect of almost every profession that exists. Those regulatory panels have the power to make interim orders of conditions and suspension when appropriate, and they can very often make their interim order within a few days of the referral of the complaint. Should the police not consider that model?

[Lord Sharpe of Epsom (Con)]

My Lords, again, I refer my noble friend back to the fact that the dismissal review is ongoing. It would be foolish of me to pre-empt the outcome of the review’s findings.