Public Order Bill

Viscount Hailsham Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

Regulations which require consultation with key stakeholders and need approval by both Houses improve on the current public spaces protection order system, which allows a local authority to impose buffer zones with scant transparency.

[Viscount Hailsham (Con)]

Would the noble Lord address the point that regulations are unamendable?

[Lord Farmer (Con)]

I thank the noble Viscount for the intervention. I would have thought that regulations are amendable by a debate in this House.

[Viscount Hailsham (Con)]

They are not, and they never have been.

[Lord Farmer (Con)]

These regulations would allow for sunset and review provisions to be included, so the legislation can cease to have effect if appropriate, as I said.

I was talking about how regulations that require consultation with key stakeholders and need approval by both Houses improve on the current public spaces protection order system, which allows a local authority to impose buffer zones with scant transparency. The decision to introduce PSPOs is often initiated, drafted and implemented by one person or a group of council officials, with very little scrutiny and awareness of what factors they have taken into account.

I will speak briefly to other amendments. Those tabled by the noble Baronesses, Lady Fox and Lady Hoey, engage with the civil liberties and rights issues. However, they accept that interference with a decision can be disallowed, which would be a first in criminal law and very hard for the individual to defend themself against. A woman could simply claim that a choice made in the privacy of her mind had in some way been influenced by a message or person.

However, the tidying-up changes that my noble friend Lady Sugg proposes do not speak to the disproportionality of Clause 9, and in some ways worsen it. For example, Amendment 84 would ensure that a buffer zone also applies where an abortion clinic is embedded within a hospital or GP surgery, as we heard. This would vastly increase the footprint affected by buffer zones. Even if only all 373 abortion clinics were included, this would leap from the current 225 square metres to 26 square kilometres, and it would single out the issue of abortion for wildly disproportionate restrictions in comparison with other health areas. A person providing false information on a leaflet about any other medical issue would be free to do so, but someone providing accurate information on abortion would be criminalised.

I could say a lot more, but this is a big group with many speakers, and I know at least one noble Lord who was dissuaded from speaking because time is not limitless. As my noble friend the Minister will know from his many conversations, there is strength of conviction on both sides of this argument. I urge him to adopt the evidence-based policy route. There is again clamour for reform of this House, but the importance of our scrutiny and revising role is not clearly understood. We would be lax in our duty if we merely rubber-stamped or gently tweaked this inadequate and ideologically inspired clause.

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[The Lord Bishop of Manchester]

I rise to address Amendments 85 to 88, 90 and 92, to which my right reverend friend the Bishop of St Albans has added his name. He regrets that he is unable to be in his place today. I also have sympathy with a number of other amendments in this group.

It is a heated and emotive debate on this clause, and it was heated and emotive when it was added in the other place. The danger is that we get dragged into debates about whether abortion is morally right or wrong. Indeed, I have had plenty of emails over the past few days, as I am sure other noble Lords have, tending in that direction. As it happens, I take the view that the present law on abortion strikes a reasonable balance; in particular, it respects the consciences of women faced, sometimes with very little support, with making deeply difficult decisions.

Moreover, history teaches us that the alternative to legal abortion is not no abortion but illegal abortion, with all the evils that brings in its train. Others, including people of my own and other faiths, may disagree with me on either side but that is not the focus of your Lordships’ deliberations this afternoon. Rather, as the noble Baroness, Lady Fox, reminded us, we are seeking to weigh the rights of women to access legal health services alongside the rights of others to seek peacefully to engage, persuade or simply pray.

However much we may disagree with the causes and tactics of those protesting, we need to remember that in a democracy not everything that is unpleasant should in consequence be made illegal. Harassment and abuse of the kinds to which the noble Baronesses, Lady Fox and Lady Sugg, and others have alluded must be condemned in the strongest possible terms. The use of legislation, including on harassment, to confront inappropriate behaviour is absolutely legitimate, but it already exists. If such behaviour is becoming more widespread, let us see the police and local authorities use those current powers more extensively so that they can create a safe and respectful atmosphere for vulnerable women.

I understand that no one has ever demonstrated that widespread abuse is prevalent or that new powers are necessary. At the least, we need clear research, as the noble Lord, Lord Farmer, proposes, to underpin such extensive new measures. In line with other provisions of this Bill, many of which we have already discussed, there is a need for the Government and police to take proportionate action while maintaining the strongest possible safeguards for freedom of speech, expression and assembly. Those are at the core of our nationhood. I do not think that Clause 9, as drafted, takes that proportionate approach.

I respect the views of those noble Lords who take a harder line against abortion and the many who reject the position from a more liberal standpoint. However, I cannot accept that it is desirable to legislate against expression of opinion on the matter or providing advice and guidance, even if one is in one’s own home or a place of worship. I cannot believe or accept that seeking to provide information could be met with a six-month prison sentence. I believe Amendments 88, 89 and 90 would help set a better balance on these provisions around freedom of speech. They would leave those things that are genuinely egregious in the clause and extract those things that are not.

Amendment 85 clarifies that Clause 9 cannot apply within an area

“wholly occupied by a building which is in regular use as a place of worship”.

Again, I do not expect or demand that religious positions on abortion are respected any more than others, but I worry that a minister of a religion holding views that are mainstream within his or her faith tradition—and are demonstrably legal to hold—could be barred under this legislation from expressing that view within their own place of worship.

[Viscount Hailsham (Con)]

I have some difficulty in understanding the thinking behind this amendment. If a sermon was being preached in a church or mosque, which is what we are being asked to contemplate, that sermon would not in any way impact on the person visiting the abortion clinic some distance away.

[The Lord Bishop of Manchester]

I thank the noble Viscount for his intervention. As the noble Lord, Lord Beith, said a few minutes ago, you might have a poster outside the church, mosque or temple saying that you are having a particular event on a particular day. It appears that would be caught by this legislation, but let us have the matter clarified by Ministers.

I thank the noble Baroness, Lady Fox, and others for their principled note that good powers must protect those who hold views with which you disagree or even find deplorable. Abortion is contested and emotive. I do not dispute that, as a result, there may on occasion be actions and levels of disruption that fail the test of Christian or any other charity. I deplore it when that happens.

However, there is a point of principle here going far beyond matters of abortion. Clause 9 is so broad and non-discriminate in its approach that it sets unfortunate precedents. I have real concerns that if we pass this clause into law in anything like its present wide form, we will see demands arise for exclusion zones, buffer zones or whatever they may be called in all manner of other locations and for all manner of purposes. I will listen with care to the rest of this debate, but I urge further concern in the approach to this part of the Bill. I hope Ministers will reflect on this and bring back some revised wording at a later stage.

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[Lord Cormack (Con)]

I am delighted to tell the noble Baroness what my opinion is. My opinion is based on real sadness that, since 1997, the other place has progressively ceased to be a House of scrutiny. MPs devoted just two hours to the Report stage of this Bill. What happened in 1997 was that there was an exuberant Conservative who tested the patience of the Labour Government with their great majority. The noble Baroness deserves a proper answer to her question. His name was Eric Forth; he is, sadly, no longer with us. I begged him, and so did my noble friend Lady Shephard of Northwold, because we were shadow Leader and Deputy Leader of the other place, to be a little bit selective, but he was not. Night after night, he kept up the Labour Party, so what did the Labour Party do? In exasperation, it brought in programme Motions, which means that every Bill has a limited amount of time. What did the Conservatives do? They protested, saying, “We won’t allow that to happen when we come back into government.” Of course, it is such a convenience for the Executive that they did allow it to happen when they came back into government. That is why every Bill is subjected to inadequate scrutiny in the other place, so it is incumbent on us to give it the proper scrutiny that our lack of timetable Motions enables us to give it.

[Viscount Hailsham (Con)]

I agree with what my noble friend is saying about timetables, but in response to the noble Baroness, perhaps he would address this point. The truth is that Members of Parliament voted for Clause 9 in very large numbers. They did so because they were aware of the very considerable concern in their own constituencies about what was going on outside abortion clinics.

[Lord Cormack (Con)]

They might have voted for all sorts of reasons. We have already heard that Stella Creasy refused vote for the Bill because it had gone wrong as far as she was concerned. Of course I will give way.

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[Baroness Hamwee (LD)]

My Lords, I have Amendment 93A in this group. In the spirit of scrutiny, I wondered what “an abortion clinic” and “abortion services” actually meant. To me they include professional counselling which puts both sides of an issue and all the options. I say that because it seems as if we have got into a rather binary state where this is just about the abortion procedure.

I am convinced that there is a serious problem for women attending some clinics who are seeking an abortion. I am also aware of how activities can move around geographically. I understand that there is not a problem now with the activities that we have been talking about outside places where abortions do not take place but counselling does. However, as the noble Baroness, Lady Sugg, said, activities have moved to new sites; she mentioned one that has been affected for the first time in many years. My amendment is to raise that issue, bothered that what is a problem now could be displaced and become a problem elsewhere. Obviously it is probing the position, but as we are seeking to tackle this, we should do so comprehensively.

[Viscount Hailsham (Con)]

My Lords, I am in general opposed to those of the amendments which are designed to reduce the impact of Clause 9. As I said at Second Reading, I support the concept of buffer zones around abortion clinics. Of course I accept the two propositions eloquently expressed by the noble Baroness, Lady Fox: first, that the right to demonstrate and freely express views is of great importance in a democratic society; and secondly, that the provisions of Clause 9, as many of your Lordships have articulated, impose serious restrictions on such abilities. But again, as I said at Second Reading, these rights are not absolute. They have to be balanced with the rights of others, and the correct balance is often not easy to identify and can be the subject of legitimate disagreement—it usually is. However, in the context of abortion clinics, Clause 9 gets the balance about right.

I will identify occasions where the balance falls the other way: in favour of the demonstrator. Some of your Lordships will think that the examples are trivial. I have often hosted meets for our local hunts, both before the ban and after it; after the ban, our local hunt acts fully within the law. The saboteurs come and demonstrate, and they are often very tiresome. However, provided they operate within the law, I would not for one moment seek to ban them. There is another example. Pacifists sometimes demonstrate outside military recruitment offices. I disagree with that and think it is wrong in principle, but again it would never occur to me to seek to prohibit that activity.

The motives of those demonstrators and those who demonstrate outside abortion clinics have something in common. It is not that they are just expressing their own opinions, which of course they are absolutely entitled to do, but they are trying to induce a change of attitude on the part of others. It is when I come to those who protest outside abortion clinics that I am conscious of why the balance tips. Those who attend abortion clinics have come to a very painful and serious decision, and often an anguished one. I think it is very wrong to subject them to what is often intemperate bullying of an extremely nasty kind.

[Lord Farmer (Con)]

I mentioned at Second Reading that the BBC did a poll which found that 15% of women who went to abortion clinics had been coerced into doing so. We do not have the information as to how many partners have said, “I don’t want this child, go and have an abortion”. We need to establish that by finding the evidence. We hear all the time that the people outside the abortion clinic are against abortions. We do not see the intimate pressure that women are often under in the home—not only from male partners but perhaps from their families—to do with shame and other things. This needs to be looked into before we make a decision on this.

[Viscount Hailsham (Con)]

Parliament is in a position to make a judgment about these matters. I was in the House of Commons for nearly 30 years—not as long as my noble friend Lord Cormack—and I was well aware of, in many circumstances, from evidence which came from many quarters, the kind of abuse to which women seeking an abortion were subjected by those who demonstrated outside abortion clinics. I strongly suspect that is why the House of Commons voted for Clause 9 in such substantial numbers, because it knew it was happening and that it was wrong. We do not need a further review to establish those basic judgments.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, my difficulty is this. In interpreting things in the way he is, the noble Viscount is suggesting that he knows why people did something. I have no idea why people in the Commons voted in the numbers they did. The noble Viscount has a view on what might have driven that; others might have another view. Generally speaking, since I have been in this place, the House of Commons has voted in huge numbers for things I have disagreed with, and unless the Opposition is going to go home, what am I supposed to do? I cannot keep saying, “I think they really did it because they were really motivated —we do not know, do we? Will the noble Viscount clarify why he keeps stressing that? Is it relevant to us?

[Viscount Hailsham (Con)]

It is, because we are being asking what the evidence is. I was telling the noble Baroness that, when I was a Member of the Parliament, for a very long time, I was conscious of some of the abuse that was going on from speaking to people coming to my surgery. In the House of Commons, we get a reflection of the views of Members of Parliament who are encountering the same response from their own constituents.

[Baroness O'Loan (CB)]

Is the noble Viscount aware of any statistics on the number of people now who are being prosecuted or who have been convicted of harassment of people at abortion clinics? I am completely unaware of that, and none of those who are promoting this clause has produced any such evidence.

[Viscount Hailsham (Con)]

I am not, but what I am telling the Committee is that those who have a great many dealings with the public, particularly Members of the House of Commons, have passed by a very substantial majority the view that Clause 9 is necessary. That accords with my own personal experience, after 30 years or so in the House of Commons.

[Lord Cormack (Con)]

May I remind my noble friend that he and I cast many votes during the debates on Brexit, regardless of what the House of Commons was doing, because we thought we were right?

[Viscount Hailsham (Con)]

I agree with that, but I think my noble friend is overlooking the fact that, in the House of Commons, it was not a whipped vote when they were talking about Clause 9; it was what is sometimes laughingly referred to as a free vote. I personally always took the view that, when I was not a Minister, a vote was a free one, but I am conscious that that was not always the view—perhaps not even of my noble friend. If my noble friend wants to intervene again, of course he can.

I would like to say a word about one or two of the amendments. I start with Amendment 80. The substantive offence is that provided in Clause 9(1). I ask rhetorically what can be the reasonable excuse for an interference? I agree with the view expressed by my noble friend Lady Sugg. I suspect that I know the intended purpose of the amendment: to allow the defendant to introduce the defence of free speech before the courts. However, if Parliament decides that Clause 9 should not have the defence of free speech—and that is what the clause provides—then such a defence should not be available in a court.

On Amendments 81 and 86, in my view the matters are of far too much importance for the designation of zones to be left to local authorities, as advocated, I think, by the noble Baroness, Lady Fox. The abrogation of the right of free speech and the abrogation of the right of association should be left to Parliament and not to local councillors.

The phrase “intentionally or recklessly” in Amendment 82 is wholly unnecessary, with one exception. It seems to me that the concept of intent is incorporated in the definition of interference as contained in Clause 9(3). The exception is the word “impedes” in paragraph (c), because I acknowledge that an act of impeding could perhaps be committed without intent. Ministers should clearly reflect on the criticism that has been expressed as to the scope of what is included in the definition of interference. I agree very much with what my noble friend Lady Sugg said about the expression of opinion. I am sure she is right about that, and it has been supported by others in the Committee.

Amendment 85 is in the names of the right reverend Prelate the Bishop of Manchester and my friend the noble Lord, Lord Beith. I almost always agree with him but on this occasion I am bound to say that I think he is wrong. With the exception of the point he made about the poster outside the church, I have very great difficulty in seeing anything that could be said within the church that could interfere with somebody seeking access to an abortion clinic, save for that which has been addressed by Amendment 97, in the name of my noble friend Lady Sugg.

As to the penalties provided in Clause 9(4), I am much more relaxed and would not seek to argue against some amelioration of the sentences set out in the Bill. In general, I think that Clause 9 is a proportionate response to a very serious mischief, and I hope that we will not water it down substantially.

[Baroness Thornton (Lab)]

My Lords, I did not expect to say how much I agree with the noble Viscount, Lord Hailsham. It means that I do not need to say an awful lot. I regret that the people moving the amendments which seek to water this down very significantly, starting with Amendment 80, have not addressed the amendments moved by the noble Baroness, Lady Sugg, which seek to turn this into a reasonable working clause.

Public Order Bill

Viscount Hailsham Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I rise to speak briefly in support of the Bill—briefly because I want to focus on the main purposes of the Bill and on the principles that underpin it.

I acknowledge that there are major concerns that have been expressed by many of your Lordships, as well as in the House of Commons, about the constraints that the Bill undoubtedly imposes on the right of individuals to protest or to express their views. I hope that Ministers will be sensitive to those criticisms when the Bill is considered in Committee and on Report. That said, I do think that the Bill in its essential respects is a proportionate and necessary response to a growing problem.

The truth is that democratic societies have always accepted that there is a balance to be struck between the rights of an individual to protest and the rights of other members of society not to have their lives unreasonably disrupted by such actions. The rights to free expression, assembly and association are important, but they are not absolute in the sense that they can be exercised whatever the consequences for other people. Thus, in the context of free speech, society has long accepted limitations, such as in the law of defamation in civil law. In criminal law, there are many more illustrations: the most recent are the prohibitions on the use of racist language or language likely to cause distress or put minorities at risk. I suspect that many of those who protest in the way that this Bill has sought to address would support those particular restrictions.

Some constraints have also been placed on the right to demonstrate. My noble friend the Minister and the noble Lord, Lord Beith, referred to Clause 9, regarding buffer zones to prevent demonstrations around abortion clinics, which was debated in the House of Commons on 18 October. I agree with the majority in the House of Commons that buffer zones should be created, but I accept that it is undoubtedly a serious restriction on the right to free expression and the right to assembly. My own feeling is that the buffer zones get the balance right and are certainly justified by Articles 10(2) and 11(2) of the convention—but I accept that this is a matter on which there are, reasonably, competing views.

I turn directly to Clauses 1 and 8, which address tactics much favoured by the present generation of protesters, such as locking on, tunnelling, and the obstruction of major transport works and of key national infrastructure. In my view, the restrictions imposed on such activities by the Bill are clearly justified. Locking on, disrupting the highway and interfering with rail travel impede and often prevent fellow citizens going about their daily business—going to work, taking their children to school, shopping, visiting elderly relatives and keeping medical appointments. In such circumstances, the activities of the protesters will frustrate the essential work of the emergency services. These consequences, in my opinion, are a wholly unreasonable interference with the rights of others, and the disruptive consequences are intended. I regard such actions as profoundly selfish and to be roundly condemned.

So too is the promotion of strongly held views by acts designed to impede the normal requirements of an interdependent state, or acts designed to frustrate policy objectives duly approved by properly constituted institutions, often elected. I have in mind, for example, tunnelling to frustrate HS2 or the blocking of fuel supplies to promote specific climate change policies. I regard these actions as an abuse of freedom. In my view, they are wrong in principle. As the noble Lord, Lord Blair, said, they divert police resources from more pressing demands. They often provoke citizens to take the law into their own hands, which undermines the basis of a civil society. They also display a fundamental contempt for democratic and representative government. So I am firmly behind the purpose of the Bill.

Some of the opposition to this Bill relies on historical analogies—on the suffragettes, whom the noble Baroness, Lady Chakrabarti, referred to, on the actions of the ANC in apartheid South Africa, and on the civil disobedience now going on in Iran. Of course, there are many other cases that can be cited, both historical and contemporary. But we should be very careful not to use such examples as justifying similar action in the United Kingdom.

Our democracy is by no means perfect. Many of its defects were identified by my father when he wrote and spoke about the “elective dictatorship”. Incidentally, he would have been deeply shocked by some of the actions and much of the conduct of Mr Johnson—not something that he would have expected from a Conservative Prime Minister. However, we live in a society in which policies can be changed by elections, by a change of Government, through discussion and by the force of public opinion.

Our task in Parliament is surely to identify the correct balance between the right of individuals to protest and the right of others not to be unreasonably interfered with. Many of the critics of this Bill suggest that the constraints on free speech and the right to protest go too far. Although I think that the under- lying purposes of the Bill are correct and should be supported, I hope, as I have said, that the Government will be sensitive to the detailed criticism of the Bill that has been and will continue to be expressed in this place.

There is always a danger, which I accept, that when seeking to address issues of public order Governments will go too far. Powers once given are hard to withdraw. Such powers will often be abused. I agree with the right reverend Prelate the Bishop of St Albans who made precisely that point.

Also, I have to say I treat with great caution recent policies coming out of the Home Office, especially when they were fashioned at a time when Miss Patel was the Home Secretary, although I have to say I treat with equal caution policies that have the authority of the present Home Secretary. I am amazed that, when Attorney-General, Miss Braverman should have advised that the doctrine of necessity justified a breach of recently made treaty obligations with the European Union. Surely it is a case of providing a legal argument, however bad, in order to provide cover for a previously determined policy outcome.

We will need to look carefully at, for example, a whole variety of the provisions contained in the Bill, such as the power to stop and search without suspicion, the power that enables courts to make a serious disruption prevention order in the absence of a conviction, the management content of such orders and the power of the Secretary of State, mentioned by the noble Lord, Lord Blair, to seek injunctions. There are serious criticisms to be addressed, and they may require serious amendments. The Joint Committee on Human Rights has identified a number of issues. However, that said, I believe that the fundamental purpose of the Bill is correct, and I hope that in its essential elements it will receive the consent of this House.

Metropolitan Police: Misconduct

Viscount Hailsham Excerpts

Wednesday 19th October 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

Again, I am afraid that I do entirely agree. It is also worth pointing out that the noble Lord omitted to mention the split of responsibility between the Home Office, the Mayor of London and the London Assembly. The Mayor of London is the occupant of the Mayor’s Office for Policing and Crime—MOPAC—which is the equivalent of a PCC for London. It is responsible for holding the Commissioner of the Met to account for the exercise of their functions and the function of those under their direction and control. MOPAC is also responsible for ensuring that the Metropolitan Police is efficient and effective in setting policing and crime objectives. There are a number of players in this particular space at the moment; they all have a job to do and, as I say, I welcome—and I think everybody should welcome— Sir Mark Rowley’s initial response.

[Viscount Hailsham (Con)]

My Lords—

[Lord Kirkhope of Harrogate (Con)]

My Lords, my noble friend has just rightly said that action should be taken. I think we all agree that those who transgress the high standards in public office should be dealt with and that lessons should be learned. However, is it not also right for us to acknowledge that the vast majority of serving police officers, men and women, serve this country with the highest levels of probity and public service, for which we should be enormously grateful?

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[Lord Sharpe of Epsom (Con)]

Obviously, I cannot commit to that, but I think the noble Lord makes some very sensible points. As I have said already in answering this Question, I am very encouraged by Sir Mark Rowley’s determined statement. Obviously, delivery is slightly different from making a statement, but he has certainly set out on the right road.

[Viscount Hailsham (Con)]

My Lords—

[Lord Harris of Haringey (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, I think we have a bit of time, so let us hear from my noble friend Lord Hailsham, followed by the noble Lord.

[Viscount Hailsham (Con)]

My Lords, may I put to my noble friend a model that Parliament has established for other professions, such as doctors and nurses? He will know that when a complaint is made to one of those authorities, it can be very rapidly transmitted to an independent interim appeals body, which can make an interim order of conditions or suspension pending a proper investigation of the complaint. Is that not a model that we should consider? Although I recognise that there would have to be an independent authority to which the initial complaint is made.

[Lord Sharpe of Epsom (Con)]

I shall certainly take that suggestion back. I am sure that all options will be considered.

Migration and Economic Development Partnership with Rwanda

Viscount Hailsham Excerpts

Wednesday 15th June 2022 Lords Chamber

[Lord Robathan (Con)]

My Lords—

[Viscount Hailsham (Con)]

My Lords—

[Baroness Williams of Trafford (Con)]

I cannot hear either noble Lord.

[Viscount Hailsham (Con)]

I shall repeat to my noble friend the question that I put to her yesterday to which she did not respond. She responded instead to a question I did not ask, so now I repeat my question: given that the judiciary is going to come to a determined view on the legality of this policy of migration to Rwanda in the near future, is it not right, in accordance with natural justice and fairness, to defer any further flights until the judiciary has come to a considered view on the legality of the Government’s policy?

[Baroness Williams of Trafford (Con)]

My Lords, the judiciary has come to a considered view not once, not twice, but three times, and none considered the policy unlawful. My noble friend is correct in what he says about the ECHR and its ruling at 10 pm last night. My right honourable friend the Home Secretary will reflect on that judgment.

Asylum Seekers: Removal to Rwanda

Viscount Hailsham Excerpts

Tuesday 14th June 2022 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, before I start, I think this is an appropriate point to remember the victims of the Grenfell fire.

On morality, I do not think it is moral to allow people to stand by and allow people to drown, or to line the pockets of criminal gangs who seek to exploit people trying to cross in small boats. That is why we have safe and legal routes, which have in fact seen over 200,000 people arrive here since 2015. On the cost, I do not think we can put a price on human lives. I think we need to do all we can to deter these perilous journeys across the channel.

[Viscount Hailsham (Con)]

My Lords, given that the Court of Appeal will consider the legality of the policy very expeditiously, would it not be fair and in accordance with natural justice to postpone any further flights until such time as the Court of Appeal has come to a final decision on the legality of the policy?

[Baroness Williams of Trafford (Con)]

The courts have now determined twice and there will be a JR process in July. That will be the extent of my comments on the legal process, because it is ongoing.

Nationality and Borders Bill

Viscount Hailsham Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

I urge Her Majesty’s Government to commit to setting out safe and legal routes and a numerical target, as set out in Motion H1. I urge the Minister to accept both Motions F1 and H1, but if she does not, and subject to my listening carefully to the continuance of this debate, I am presently minded to test the opinion of the House on Motion F1.

[Viscount Hailsham (Con)]

My Lords, I shall speak to Motion F2, which stands in my name. Perhaps I might make three preliminary points. First, I apologise to your Lordships for having come late to this debate. I was moved to table Motion F2 by the Government’s announced decision to enter into the agreement to offshore responsibility for asylum seekers to the Government of Rwanda; that is what has moved me to participate. Secondly, as alluded to by the right reverend Prelate the Bishop of Manchester, the substance of Motion F2 is in fact drawn from the Motion moved by the right reverend Prelate the Bishop of Durham, which successfully passed in this House on 4 April. Lastly, on a point alluded to by the right reverend Prelate, Motion F1, which he tabled, is of course to be considered before F2. I am sure that the right reverend Prelate, and certainly myself, will listen very carefully as to the sense of the House, as to whether there is support for either or both and, if so, in which order; that doubtless will influence us in deciding whether to test the opinion of the House.

The purpose of Motion F2 is a simple one: to ensure that the designation of a state as a safe country requires a resolution of both Houses of Parliament. As to the merits of the policy, I have very grave reservations about the cost and practicality of the Rwanda proposals. The experience of the Israeli Government, when they tried something rather similar, is not encouraging. I have great reservations about the legality of what is proposed. I accept of course that the noble Lord, Lord Pannick, has much greater expertise in this field than I do.

I note, of course, that Ministers have repeatedly said that the policy is consistent with international law and our obligations under the 1951 convention. Ministers repeatedly said that the policy of turning back the boats of asylum seekers was both legal and practical. However, it seems that, in the face of legal challenge as to both the practicality and the legality of the policy, the Home Office yesterday backed away from that position. I view the advice from this Home Office on these matters with very great caution.

Above all, my reservations about the Rwanda policy are based on my concerns as to its propriety. Can it be right to offload to somewhere else the responsibility for individuals who, for a time, have come into our jurisdiction? By doing so, we will have ensured that Ministers who are responsible for where they have gone are not accountable for the way in which they are treated, and I am finding myself extraordinarily uncomfortable with that concept. I might say, as someone who was here yesterday morning when the Minister had to answer a Private Notice Question on this matter, that I think she would agree the House was deeply concerned about that proposal.

However, if the Government wish to proceed with this policy, I can see no reason in principle why they should not seek as a precondition the express authority of Parliament. If I have correctly interpreted the Minister’s remarks in the debate on 4 April with regard to the 2004 Act, the principle of the affirmative resolution as a precondition to adding states to the list of safe countries has already been conceded. As I understand the 2004 Act—and it is not an easy one to understand—in respect of transfer to safe countries it provided for individual certification in respect of specific persons, whereas the present Bill is general in its application. But the principle of the affirmative resolution has been conceded; it is in legislation. So by all means have a debate about necessity but let us not have a debate about the principle, because that has been conceded.

The express parliamentary sanction for this policy is what Amendment F2 proposes—nothing more, nothing less. Before that consent will be given, the Government will have to satisfy Parliament that the criteria in paragraphs (a), (b) and (c) of new subsection (2B) contained in Schedule 3 are complied with.

The position of the Government as set out on the Order Paper is that it is not necessary to make the designation of a safe state by order dependent upon a statement as to costs. That was the position in the amendment moved by the right reverend Prelate the Bishop of Durham but it is not the position today, because the requirement for an assessment of costs has been removed from Amendment F2, which stands in my name.

In my view, it comes down to this: decisions of this kind, which affect the future and liberty of subjects of other countries but who have come here, is a matter that should be resolved by a vote of Parliament, not by the sole decision of the Executive. It is in furtherance of that view that I hope your Lordships, if circumstances allow, will support Amendment F2 in a Division.

[Lord Kerr of Kinlochard (CB)]

I shall speak to Motion C1, which takes us back to the refugee convention. The House may well think that, after the learned crescendo from the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, there is nothing left to say on the subject—but I will try. The fact is that the biggest and most blatant breach of the convention in this Bill is in Clause 11; this brings in the two-class system, with the underclass not allowed convention rights or access to public funds because they did not come directly from the country where they feared persecution.

I have to say to the Minister that the safeguard of Clause 36 is insufficient. You cannot come directly from Asmara, Sana’a, Kabul or Kyiv—and in any case, of course, the convention does not allow for such segregation. When we signed up to it, we agreed that the only check made would be whether the asylum seeker’s fear of persecution was real and well founded. That is what we have always done. Among those asylum seekers arriving by irregular routes—I note that, in every one of the last 10 years, there have been asylum seekers coming from Rwanda—75% of those coming by irregular routes have been found by the courts to be genuine asylum seekers and have been granted asylum. Their fears were well founded, but this Bill would put all of them in the underclass, with no convention rights.

This House has twice, by large majorities, thought that wrong, and that we should continue to honour the convention deal. As the noble and learned Lord, Lord Brown, reminded us, noble and learned Lords have repeatedly challenged the Government to explain why they see no incompatibility between the Bill and the convention. The Government’s silence has been eloquent. In the other place, on 20 April, a junior Minister took two sentences to dismiss our views. Our principled objections to Clause 11 were not refuted, explained, or even mentioned.

My amendment today concedes the differentiation that the Government want, but diffuses it. They can have their two classes, provided that the distinction takes account of the fact that you cannot come directly from a warzone, and provided that those in the underclass are not made destitute, losing all their convention rights. Although the Government say that it is, this is not about small boats in the channel. Illegal, inhumane differentiation would have no deterrent effect because these are desperate people. The way to defeat the traffickers is to open safe routes and not to close the family reunion route as this Bill seeks to do.

I am no lawyer, as is probably obvious, but I have served my country for long enough to see how international reputations are built over time and destroyed overnight. Britain’s reputation on humanitarian issues is a national asset, which should not be lightly thrown away. And for what? As the noble Lord, Lord Paddick, keeps reminding us, asylum seekers represent 4%, or sometimes 5%, of the annual immigration flow.

Finally, I have to say to the Minister that the Vienna Convention on the Law of Treaties does not permit a free-for-all of conflicting national interpretations, and it is misleading to imply that it does. In this House, we tend to insist that the rules-based system and international law matter. On the internal market Bill, we insisted, and our insistence carried the day. I think we must again insist that the other place finally address the big issue—better late than never—and think again about Clause 11. So, I am afraid, it is once more unto the breach, dear friends.

UK-Rwanda Asylum Partnership Arrangement

Viscount Hailsham Excerpts

Monday 25th April 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, as your Lordships’ House does, there will be ample opportunity to discuss the aspects of this agreement. It complies with our international and other obligations. There will be ongoing monitoring of the agreement, and there is nothing in the United Nations refugee convention that prevents this happening.

[Viscount Hailsham (Con)]

Does my noble friend confirm that, in the face of legal challenge, the Government have withdrawn their turnabout policies? Does this not suggest that the legal advice from the Home Office that the Rwanda policy accords with our international obligations should be treated with a degree of caution?

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I think it is quite clear why we are taking action now.

[Viscount Hailsham (Con)]

Because of the May elections.

[Baroness Williams of Trafford (Con)]

No, absolutely not. This Bill has been going through both Houses of Parliament for some time. I am sure that noble Lords have observed that people are dying at sea because of the actions of criminals facilitating journeys to the UK.

Nationality and Borders Bill

Viscount Hailsham Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, the noble Baroness, Lady Chakrabarti, has asked me to open the batting on this amendment. It is a very short, important and simple amendment that addresses an unnecessary problem. The Minister has told us—no doubt on the basis of legal advice—that the Bill in its present form is compliant with the 1951 convention and the 1967 protocol. In being so, the argument is, it will fulfil the Government’s repeated assertions that this is precisely what the Government intend. Indeed, the Minister said so in terms in answer to my request in Committee, and I apologise to her because at that late time of night I had simply missed what she said, or at least I had not fully absorbed it. She said:

“We are absolutely firm … that nothing in the Bill undermines our convention obligations”.—[Official Report, 10/2/22; col. 1985.]


So what is this all about?

I mean no disrespect to the Minister, of course not, but her statement is no more than mere assertion—an assertion of opinion based on what the department’s legal advisers have told and advised her. Some of us—indeed, many of us—share the Government’s apparently absolute commitment to the convention, but we do not think that the Bill does. We believe that the Government are wrong. In our view, provision after provision in Part 2—the debate will happen later on—contravenes the convention. With many others, I shall support the later amendments that seek to achieve compliance, simply because we believe that the provisions are not compliant. Many of us are lawyers too; we have to address convention issues, but many of us are not lawyers and are simply reading what the proposed legislation actually says. We are convinced that, as things stand, the Bill contravenes the convention, and does so repeatedly.

This is not a lawyerly quibble: even as we speak the problems of refugees are being shown to us in Ukraine. Rather than a lawyerly quibble, what worries me is that the debate has gathered echoes of the Christmas pantomime: “Oh yes,” say the Government, “This Bill is compliant with the convention”, and I reply, on behalf of others, “Oh no it isn’t compliant”, and the Government say, “Oh yes it is”, and we say, “Oh no it isn’t”, and so it goes on. But this is not a pantomime; this is lawmaking. I suspect that I am not the only person here who thinks it is a very strange parliamentary debate in which honest views exchanged in this way overlook that this is a deeply sensitive debate about which there has been much human suffering. The level to which it has plunged in relation to the pantomime is really rather serious.

The only place where this “Oh yes it is, oh no it isn’t” exchange can be resolved is in the legislation itself. If it is accepted, this very simple amendment will achieve both the frequently declared intention of the Government and the objective of those of us who believe that the legislation fails to do so. Let me explain this in a few words.

In future cases, the court will be bound by the provisions of the legislation which we have enacted—by its statutory provisions, not by repeated government declarations of their intentions. Even an advocate of the immense standing of the noble Lord, Lord Pannick, who sought to rely, in court, on the repeated assertions of the declared intentions of the Government, was met with: “But that’s not what the legislation says”. Maybe the noble Lord, Lord Pannick, would have an answer to this, but even if he produced one, it would not be very effective.

If we are right—and I believe we—then we have this absurdity whereby the expressed intentions of the Government will be defeated by their own legislation. That is rather stark. If the expressions on behalf of the Government are genuine—and, although she is not here, I do not for one moment doubt the Minister’s personal good faith—we really are in cloud-cuckoo-land. The amendment will avoid that absurdity. There will be no uncertainty or equivocation. Any decision or policy in relation to the provisions of Part 2, whatever form they may eventually take, will be subject to the convention and protocol. This is on the unequivocal basis that it is a primary requirement of the legislation that any decision of the Home Office officials responsible, and any decision of the court considering those decisions under Part 2, must comply with them.

There is nothing new about a provision like this. I am indebted to the noble Lord, Lord Pannick, among others, for drawing my attention to Section 2 of the Asylum and Immigration Appeals Act 1993. We are right here in this very field. Nothing in the Immigration Rules shall lay down any practice which would be contrary to the convention. This is all that we are asking for here. Let us have that principle set out in the Bill in the form of this amendment.

[Viscount Hailsham (Con)]

My Lords, those who heard the Minister outline the position of the Government earlier today with regard to the plight of Ukrainians must have been dismayed by his response. None the less, I make no personal criticism of him at all.

Some of us have in mind the cavalier attitude of Mr Johnson to treaties that he recently signed, such as the Northern Ireland protocol. When I consider many of the suggestions which come out of the Home Office as to how to deter migrants from coming to this country, I have no confidence that this Government will always comply with the letter—far less the spirit—of the convention. I do not suppose that the new clause proposed by Amendment 24 will be a complete remedy. However, it is a very useful statement of an important principle, and I shall vote for it.

[Lord Rosser (Lab)]

Not surprisingly, there is nothing I could add to what the noble and learned Lord, Lord Judge, has said. We shall certainly be supporting this amendment if it ends up being put to a vote.

Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I rise to support the Government on this matter. It rather caught me by surprise that I was going to but, having studied the amendments with some care, I am on their side. As regards Amendment 116, these provisions are a serious improvement on what went before. I am bound to say that I was very uneasy with what went before but Amendment 116 addresses some of the concerns. I have two drafting points to make, which could be addressed in the House of Commons if the Government were so minded.

First, I absolutely agree with those who worry about the word “significant”. “Significant” is pretty trivial; it is not “substantial” or “serious” and, speaking for myself, I rather hope that the Government substitute “substantial” or “serious” when the Bill gets to the House of Commons.

My second point concerns proposed new subsection (2ZC). Here, I do not think that the Government have gone far enough, because what is being contemplated in that provision as it stands—I am sorry, I simply do not agree with the noble Lord who spoke from the Opposition Benches on this—is a total inability to carry on the work in the vicinity of the noise. But we should also address circumstances where there is a considerable inconvenience to ordinary citizens, which takes me to my fundamental point: of course demonstrators have the right to demonstrate, but ordinary citizens also have rights to go about their ordinary business, to work, to enjoy reasonable tranquillity and to expect others to respect that. It seems that the law has gone too far in favour of a demonstration, and that is very unfortunate. On the whole, I therefore support the Government in this matter.

It is true that if I was drafting this thing, I would have done it slightly differently. I agree with the noble Lord, Lord Coaker, about unease. What does unease mean? The noble Viscount, Lord Colville, makes the same point and I agree. I also agree on the concept of not being able to carry on proper business. That is slightly doubtful to my way of thinking as well. However, on the whole, although I came initially to think these things had gone too far, I now think that the Government are broadly speaking right in trying to bring about a better balance between the rights of demonstrators and ordinary citizens.

[Baroness Jones of Moulsecoomb (GP)]

Could I just mention to the noble Viscount, Lord Hailsham, that these are ordinary people who protest? These are people who quite often just do not agree with the Government. I support a lot of protests that happen at the moment; there are sometimes protests that I do not support, but I support those people’s right to protest. On noise, I agree completely with the noble Lord, Lord Coaker. How do the Government seriously think that protest is going to happen without noise? That is a fundamental part of it, whether it is drums, chanting or singing, or just talking through a megaphone. These provisions really are so oppressive. I have attached my name to Amendments 122, 133 and 147. These clauses should be deleted from the Bill. They are repressive and plain nasty, and they really have to go.

Small Boats Incident in the Channel

Viscount Hailsham Excerpts

Thursday 25th November 2021 Lords Chamber

[Lord Rosser (Lab)]

My Lords, since the Statement was made in the Commons only a relatively short time ago, what I intend to say will be very similar to what was said by the shadow Home Secretary in response to it there.

[Viscount Hailsham (Con)]

It will be precisely the same.

[Lord Rosser (Lab)]

It is not entirely the same, but very close.

On a serious note, yesterday’s tragedy was the most tragic of reminders of the dangers of the English Channel, and that people’s lives are at risk every day in these small boats. It is a sobering moment for us as a nation, for France and for the international community. As I understand it, at least 27 people have died. We think of those lost, their loved ones left behind, and the two who were rescued, who are receiving medical treatment and fighting for their lives. I pay tribute to all those involved in the joint French-British search operation in the air and on the sea, putting themselves in danger to help others.

I believe that there have been arrests in France of those suspected of the vile crime of people smuggling. I appreciate the difficulties and sensitivities when there is an ongoing legal case, particularly in another jurisdiction, but I hope that the Government can assure the House that we will give all the co-operation required by the prosecuting authorities in France if we are able to help in that regard.

On the arrangements that we have in place with the French authorities, and the £54 million, referred to in the previous debate, can the Government set out for how many days a week the full existing surveillance capacity is operating? What will they be doing—as a matter of urgency, I hope—to increase that surveillance, particularly in light of what has happened? What will the Government be doing to deepen intelligence and law enforcement co-operation with the French authorities in other countries, so that the focus is on not only coastal patrols, as it appears to be currently, but disrupting the routes often facilitated across hundreds or thousands of miles by the gangs, who have a reckless disregard for human life?

May I press the Government on properly managed, safe and legal routes, and specifically the position on the Dubs scheme? It was closed down, having helped only some 480 unaccompanied children rather than the 3,000 many expected it to help. Will that scheme be urgently reinstated?

In the Statement, the Government spoke of a worldwide migration crisis, and that is the reality. In view of that, can the Government revisit their decision to cut the international aid budget and lead on the international stage with other countries to help those fleeing persecution? Yesterday’s terrible tragedy must be a moment for change. The time for urgent action to save lives is now.

I noticed that the Home Secretary said in the Statement that she has approved maritime tactics, including boat turnarounds, for border staff to deploy. Can the Minister tell us a little more about these maritime tactics that have been approved? What changes will take place as a result?

As I say, there is a reference to boat turnarounds. I presume that means turning around boats in the channel and sending them back to France, but perhaps the Minister could indicate precisely what that means and whether there are other maritime tactics, as the Statement implies, apart from those boat turnarounds.

I also picked up in the Statement that the Minister repeated the Government’s position, which they have stated on numerous other occasions, that people should claim asylum in the first safe country they reach, and that nobody needs to flee France to be safe. Presumably, if our Government’s stance is that you should claim asylum in the first safe country you reach, they would have to accept that for most people who have come through France and then across the channel on small boats, unless there is evidence to the contrary, France was not the first safe country that they reached. Presumably, most went through other safe countries before they got to France. Do the Government accept that, on the basis of their own statement that you should claim asylum in the first safe country you reach, France’s situation is, in that sense, no different from ours, because France would probably not have been the first safe country that they reached? Some clarification on that issue might be helpful in the reply that I hope the Minister will give to my comments.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

Smugglers have a fairly international reach and are not necessarily based in the UK. Quite often, they are based in eastern Europe or the Balkans and they ply their trade across the world. Where they are based is almost irrelevant; their business model is based on people smuggling and multiple types of crime. Claiming asylum in the first safe country is a long-established international policy.

[Viscount Hailsham (Con)]

My Lords, may I reiterate an obvious point—that if we are to reduce the flow of cross-channel migration, and thus reduce the risk of tragedies, we really have to work very closely with the French? Our interests are the same. To promote that, can we please avoid unnecessary public criticism of and recriminations with the French? Incidentally, I entirely agree with the noble Lord, Lord Paddick, about boat turnabouts. It is a ridiculous proposition.

[Baroness Williams of Trafford (Con)]

I do not think my noble friend has heard me once today say anything negative about the French. The only thing that I have said is that it is essential that we work together. We are exploring all options on deterring people smugglers.