Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Jones of Moulsecoomb Excerpts

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

Moved by

[Baroness Jones of Moulsecoomb]

75A: Clause 4, page 5, line 10, at end insert—
“(4B) Where the Investigatory Powers Commissioner becomes aware of any potentially unlawful or improper conduct undertaken in connection with a criminal conduct authorisation, which is not authorised by the criminal conduct authorisation, the Commissioner must refer the matter to the police for investigation.”Member’s explanatory statement
This amendment would introduce a requirement for the Investigatory Powers Commissioner to refer potentially unlawful or improper conduct undertaken through a criminal conduct authorisation to the police for investigation.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I am afraid I am going to disappoint a lot of noble Lords for whom I have huge respect, but I am afraid I do not think this Bill is necessary. That is not to say that the old system was good, because it clearly was not, but this Bill is worse. It could have been better, but it is not, so I would like to see it scrapped. However, in the meantime, our job in your Lordships’ House is to try to improve it and to get the Government to listen and understand why they are improvements.

In the previous group, the noble Baroness, Lady Chakrabarti, talked about overreach. That is part of the problem I have with this Bill, but it is not the only part. As some noble Lords have said, it is a dangerous world and we have to do what we can to keep people safe, which is all very true—and all the examples the Minister gave of how to use these powers are very reasonable. However, at some point, we have to ask ourselves, “What are we prepared to lose to keep ourselves completely safe?” In the previous group, the noble Baroness, Lady Whitaker, talked about liberty and democracy, and those are some of the things we are losing with this Bill. It is an erosion. Your Lordships’ House is very concerned about the erosion of democracy —about more and more powers going into statutory instruments.

The two amendments I have tabled require that unlawful conduct that goes beyond the criminal conduct authorisation, or that should not have been authorised in the first place, be reported to the police or a relevant oversight body—for example, the Independent Office for Police Conduct. My Amendments 75A and 75B reveal a deafening silence in the Bill about what happens when something goes wrong. I hope the Minister can explain that to us. What happens when an authorisation is granted that clearly should not have been? What happens if somebody goes beyond their authorisation and commits additional criminal offences? Amendment 75A would require that the authorising authority refer to the police any criminal conduct that was not authorised. Amendment 75B would require “unlawful or improperly granted” criminal conduct authorisations to be referred to the relevant oversight body—for example, the IOPC.

This is a gaping hole in the Bill: we are talking about state-authorised crime, and the police and other government authorities must not be complicit in criminality that goes beyond the legal authorisation in this Bill. Otherwise, it creates an additional quasi-authorisation where handlers can just sweep things under the carpet when it is dangerous to admit they have done them. They can pretend they did not happen. I hope the Minister will recognise these gaps in the Bill and work to address them on Report.

[Baroness Chakrabarti (Lab) [V]]

My Lords, once more, it is a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, who has brought so much to the scrutiny of this Bill. What I want to say about her amendment is: why not? Why not improve the Bill by providing for greater clarity and specificity about the process that would be employed when things go wrong? In life, in all institutions, whatever the good intentions, sometimes things go wrong. It is our duty as legislators to be clear about what the process would be in those circumstances. Once more, her amendments and the review proposed in Amendment 79 by the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, are no-brainers. I look forward to hearing from the Minister about why there should not be greater clarity and specificity about safeguards.

It is also a pleasure to precede the noble Lord, Lord King. Since he is about to follow me, I want to address some remarks to him and the Minister. He spoke incredibly eloquently in the last group about the dangerous nature of our world in these times and incredibly passionately, and eloquently, once again, about all the terrible terrorist and serious criminal plots that have been foiled with the use of covert human intelligence sources—by undercover operatives and agents. With respect, however, the noble Lord, Lord King, seemed to conflate three very distinct propositions that we cannot afford to conflate when discussing this precise legislation.

The first is the concept of using covert human intelligence sources, which I think we all agree have to be used; it is the use of such sources that has presumably helped to foil all those terrible plots and keep us as safe as we can be. There is no such thing as a risk-free society but, of course, we want to be as safe as we can be. That is the first concept: using undercover operatives at all. We all agree that sometimes has to happen.

The second concept is authorising those undercover operatives to commit crimes. The noble Lord, Lord King of Bridgwater, will have to accept that is a further step and is not to be conflated with authorising an agent to go undercover. To authorise him or her to commit criminal offences is, perhaps, a necessary evil to keep their cover, but it is, none the less, a further evil that is a challenge to the rule of law. I agree with him that that already happens, and the suggestion is that should be put on a statutory footing. I will give him that.

However, the third concept that he completely elided with the previous two is that of granting an undercover agent of the state—who may be from the terrorist community but turned, or from the criminal community but supposedly turned—total immunity from civil liability and criminal prosecution. To send them into those situations with an advance immunity that even uniformed police officers and soldiers do not have is what is new in this legislation. That is why the legislation is causing such grave concern. It is not just the status quo on a statutory footing; it is going further. That is the challenge, not just to the rule of law but to the safety of our communities—that anybody, let alone a civilian who may be from the criminal fraternity, should be given this kind of licence or golden ticket to commit crime with immunity. I would be grateful to hear from the very distinguished noble Lord, Lord King, and the Minister on that. The status quo would just be that they had a public interest defence, which is a very strong presumption against prosecution. That is the current system; why should it not be replicated in this Bill?

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The noble lord, Lord Rosser, asked me to look further at the real-time oversight that the IPC could provide. I have undertaken to work with the noble Lord, Lord Anderson, and others on that. I therefore hope that noble Lords will withdraw or not move their amendments.

[Baroness Jones of Moulsecoomb (GP) [V]]

The noble Baroness, Lady Chakrabarti, used an interesting phrase, “necessary evil”. I wonder how many necessary evils it takes to get an overload of evil, which is not a phrase that I use often. However, particularly in relation to the current “spy cops” inquiry, we know that evil things have taken place under the old system. I therefore have no doubt that it would be better to have a different system, but it is not this Bill.

The noble Lord, Lord King, said that if this matter could be dealt with in a different way—that is, by not giving consent for criminal behaviour—then it would be. However, in my experience, that does not necessarily happen because people become tired; they are human and feel fractious. They want to do something in the quickest way, which is not always the best option. For example, the use of tasers in the UK used to be rare but now that they have been rolled out further, their use has increased exponentially. That has nothing to with the greater number of tasers: it is because police officers no longer have to negotiate with people who are wielding knives or going through mental health problems. They can just taser them. It is not always true that if something can be done in a better way, it therefore is.

The noble Lord, Lord Paddick, said that authorised action was also a problem and I very much agree. I have only met undercover police spies who were whistleblowers—knowingly, that is. They were incredibly brave and well-motivated in their job. However, they found it overwhelmingly difficult and saw or did things that they felt that they should not have been doing or been involved with. I do not make a blanket criticism of people who act as undercover police spies. However, while we need to protect them, we also need to protect ourselves, the general public and the rule of law.

The noble Lord, Lord Paddick, also asked: who do we believe? That is a problem. It is possible to believe every word that the Minister said in defence of the greater controls already in the Bill. However, I am influenced by the fact that I have seen such controls flouted. I come, therefore, from a different, untrusting point of view. People do not always act honourably and play by the book. My two amendments, or Amendment 79, which I also support, would, therefore, be a good idea.

The noble Lord, Lord Rosser, in his usual calm and collected way, asked for further information. I look forward to him putting pressure on the Government to explain themselves more fully.

I will check Hansard but I am sure that I will still have concerns. In the meantime, I beg leave to withdraw my amendment.

Amendment 75A withdrawn.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am going to speak quite a lot of times today. I do not really want to apologise for that, but I do want to explain it: I have been interested in this particular area of policing for more than a decade, ever since I found out that the Metropolitan Police was actually spying on me, tracking my movements and reporting back on what I was doing. At the time, I was an elected councillor in Southwark, an elected assembly member and, for a year of that time, I was Deputy Mayor of London—when there was only one Deputy Mayor of London, not all these other deputy mayors. At the time, I think I was quite naive about the fact that the police did this sort of thing. When I got into it, of course, it became obvious that they do quite a lot of it.

The spy cops inquiry that is happening at this moment—actually, it is not happening at this moment, it is taking a break, but it will be happening again in 2021—has made it obvious that there are huge problems with this area of policing. This Bill does not solve them, and in fact it goes further—it makes more problems than it might be said to solve. I did try to be a core participant in the spy cops inquiry, but the judge at the time ruled that, because I had been spied on by the ordinary police, not by undercover police, I did not qualify. That was obviously a matter of huge sadness to me.

I congratulate the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, for tabling these amendments, because they are, I would say, quite necessary. For example, the language is quite confusing. I am going to say it in my own words, because we have had some very good lawyerly comments on this, but I thought I should say it in the way that I see it. These amendments would replace

“in the course of, or otherwise in connection with, the conduct of”

a covert human intelligence source, or a police spy, with the word “by” a police spy. These are important amendments to probe how tightly or loosely criminal conduct can be authorised. The Minister needs to give a clear and thorough explanation of the intention behind the words

“in the course of, or otherwise in connection with, the conduct of”.

What does “otherwise in connection with” mean? What do the Government say would be the effect of removing those words, and having the much simpler word “by”?

It is important to recognise that many police spies are recruited from the ranks of criminals. To what extent can their existing or ongoing criminal conduct be authorised? I know that the noble Baroness or the noble and learned Lord will explain that it is only future conduct, but at the same time, of course, when they are doing future conduct, they will also be doing the past conduct continually. Amendment 37 probes this issue further, making it clear that only future conduct can be authorised. Without this, there is a risk that past criminal conduct can be authorised, so that criminals would essentially be let off the hook in exchange for future co-operation with the police.

Then there is the question of how all this interacts with the Proceeds of Crime Act. If criminal conduct is authorised under this Bill, does that shield any criminal profits from being recovered under the Proceeds of Crime Act? For example, can a drug dealer or human trafficker rake in huge amounts of cash while working on the side for the police as a spy, or would this money be confiscated by the state? This legislation must not create legalised criminal enterprises—state-endorsed mafias—where the profits are irrecoverable by the state. That would be a very dangerous situation. So I am hoping that the two Ministers we have with us today will tell me that that is a ridiculous suggestion and it could never happen, because the Government will make sure that it never happens.

[Lord Cormack (Con)]

My Lords, I rather wish this Bill were called the “Authorised Criminal Conduct Bill”. I find it very difficult to get my mouth around this very cumbersome title, and I utterly loathe the term “CHIS”. I wonder if my noble and learned friend who will reply could earn himself undying gratitude from those of us who care about the English language by coming up with something else.

These are probing amendments, and they seek essentially one thing: clarity. The noble Baroness, Lady Hamwee, made that very plain in her admirably brief introduction to this short debate. Clarity is of such importance when we are swimming in such murky waters and dealing with such very questionable matters.

The noble Lord, Lord Anderson of Ipswich, said that he felt the matter of retrospection had probably been dealt with by the remarks of, I think, the Solicitor-General in another place. But there is still a certain lurking doubt, and it would therefore be good to put something on the face of the Bill while it is in your Lordships’ House to make it plain beyond any peradventure that retrospective authorisation is not possible.

I do not want to detain the House any longer, but clarity, I would emphasise, is what we are after here.

--- Later in debate ---

It is for these reasons that I wholly support the amendments in the group. They would preserve the discretion of the CPS and the DPP to make prosecution decisions in the public interest. They would also leave it open to the defendant to run the defence that he was acting on behalf of the state and consequently did not have the necessary intent to commit a crime. It so happens that I ran exactly that defence some years ago in a trial that lasted many weeks and was held entirely in camera, thus permitting the defendant to reveal the authorisation of his conduct—a fact that was not actually in dispute. Finally, by leaving open the question of civil liability, the victim would still be able to claim damages. I would like the Minister specifically to deal with the issue of immunity from suit at the hands of the victim, which could benefit only the state.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Thomas of Gresford. I love these two amendments because they get to the heart of one of the two biggest problems with the Bill, which is immunity. I take the point from the noble Baroness, Lady Chakrabarti, about using the phrase “undercover operatives”. I have personally been saying “police spies”, which is a more generally understood concept for people outside the Chamber.

The Minister did not answer my questions in the previous debate. He did not address the proceeds of crime or the concept of ongoing crime that is not specifically given immunity but will happen anyway. Is that given immunity as well?

The Government are claiming that the Bill just puts everything on a regular footing and that we can all relax because we know exactly what will happen, but it is in fact nothing to do with that. It is about heading off all the legal uncertainty caused by the current legal challenge—the spy cops inquiry. It is nothing to do with protecting the general public. I find it infuriating that the two groups that are constantly referred to as being vulnerable to this legislation are paedophiles and terrorist organisations when we all know perfectly well that other organisations will be contaminated by this system and have undercover operatives and police spies. It will be unions and political groups, such as campaign groups, as we are seeing at the moment with the spy cops inquiry.

It is obvious that the Bill hugely expands the state’s ability to authorise criminal conduct and grant legal immunity to criminals. It is worrying that criminal conduct will go unpunished because of the Bill, but also, as several noble Peers have already mentioned, that the victims of these crimes will have no legal rights. They are left by the Government as collateral damage, which we have again seen in the spy cops inquiry. We have seen just how badly people have been harmed by undercover policing: innocent women’s lives ruined, children fathered by police officers using fake identities who then run off and avoid all their parental responsibilities because they have another family elsewhere who they want to go back to, and people betrayed by state agents.

The Bill’s provisions will prevent any entitlement to compensation for the damage caused by a police spy. You were tricked into a sexual relationship with a police officer? Too bad. Your house was burgled by a police spy? Too bad. You were beaten up by a gang acting as informants for the police? Too bad. Innocent people will be hit by the Bill. It is so obviously wrong. Innocent lives will be ruined. Surely the Government understand this and can see that it is wrong to try to legislate like this.

[Baroness Bryan of Partick (Lab) [V]]

My Lords, it is an honour to follow the speakers before me, who have such a range of experience. Many excellent amendments to the Bill have been proposed. Some are probing, looking for a response that might help to clarify the Government’s intentions. Others could serve to safeguard individuals who might be recruited as undercover operatives or those who might be affected by their actions.

Amendments 3 and 5, tabled by my noble friend Lady Chakrabarti and others from across the House, take us to the very heart of the issue. The ultimate safeguard we have from criminal activity is the rule of law. The very well-argued briefing from Justice points out that granting prior immunity would completely undermine the core principle of criminal law: that it should apply equally to all, both citizen and state.

At the briefing the Minister provided early in November, she was asked what would happen if an undercover operative exceeded their criminal conduct authorisation. To my mind there was not a clear answer. Another participant pointed out that the second part of the CPS test when deciding whether to proceed with a prosecution allows for public interest factors to be taken into account. During the Second Reading debate, I asked the Minister whether she could give an example of an undercover operative being prosecuted after having been authorised. She did not answer that point. My understanding is that the current test of the public interest has protected such activity, so why is there a need for prior immunity?

The statement made by the Minister for Security during the debate in the other place that criminal action can become lawful is a clear example of doublethink, whereby we can accept two mutually contradictory beliefs as correct: the action is criminal, but it is lawful. We have been reassured repeatedly that actions carried out cannot be in breach of the European Convention on Human Rights. The Minister assured us that

“nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act”

and that

“there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations”—[Official Report, 11/11/20; cols. 1046-47.]

but, as the Justice briefing points out, the very act of granting immunity might be a breach by denying a victim of the crime the right to an effective remedy.

In seeking to give reassurance at Second Reading, the noble and learned Lord, Lord Stewart of Dirleton, directed us to the covert human intelligence source draft code of practice. He said that this would give authorising authorities

“clear and detailed guidance that they must follow in deciding whether to grant an authorisation.”—[Official Report, 11/11/20; col. 1045.]

The code accepts that there will sometimes be mistakes and there is a section covering that eventuality headed “serious errors”. It says:

“In deciding whether it is in the public interest for the person concerned to be informed of the error, the Commissioner must in particular consider: The seriousness of the error and its effect on the person concerned; The extent to which disclosing the error would be contrary to the public interest or prejudicial to: national security; the prevention or detection of serious crime; the economic well-being of the United Kingdom; or the continued discharge of the functions of any of the intelligence services.”


These were the very criteria used to issue the erroneous CCA in the first place.

I support Amendments 3 and 5 and the retention of the public interest test, which has, over the years, been sufficient protection for CHIS activity. I hope that we can take this amendment forward to the next stage.

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[Baroness McIntosh of Pickering (Con)]

My Lords, I lend my support to Amendment 7 as a probing amendment, which was so eloquently moved by the noble Baroness, Lady Ritchie of Downpatrick. I have a very simple question for my noble friend Lady Williams. Is it an unintended consequence of the Bill that it may inadvertently have extraterritorial effects reaching beyond its original intention? That possibly goes to the heart of one of the conclusions of the legislative scrutiny performed by the Joint Committee on Human Rights, which says at paragraph 52:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”


I therefore believe that the noble Baroness, Lady Ritchie of Downpatrick, has raised genuine issues of concern, as there are in Amendment 9, and I am sure that my noble friend will wish to put their minds at rest.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is an interesting pair of amendments, because they go to the territorial extent of the Bill. Does the Bill seek to authorise state agents to commit crimes in foreign countries? That opens a whole legal and diplomatic mess. What happens if somebody is given permission to commit crimes abroad but is then caught and prosecuted in that foreign jurisdiction? Can the UK Government really seek some sort of immunity for their agents in that sort of situation? It raises the further question: to what extent do the Government think this recreates the status quo under the current system? Do they claim to have the ability to authorise crimes by their agents in other countries at the moment?

[Baroness Chakrabarti (Lab) [V]]

The noble Baroness, Lady Ritchie, points out an enormous sensitivity, in relation not just to extraterritoriality but to immunity, in the context of Northern Ireland in particular. Noble Lords are particularly jealous in their protection of the Good Friday agreement, as we have seen in other debates, and they should be no less jealous of that precious peace in their consideration of this Bill. As we have just heard from the noble Baroness, Lady Jones, it will not just be a problem in relation to the peace in Northern Ireland but will be a significant issue for our diplomatic relations with all sorts of countries and our status in the world, at a particularly sensitive moment for that status, if the Minister is not able to give some reassurance in her reply.

I have no doubt that for ever, a tight group of agents of the state probably have been informally or rather more formally authorised in the context of espionage work—perhaps vital espionage work—to sometimes commit criminal offences. But again, it creates a much bigger problem, including for diplomatic relations, if we are purporting to give immunity not just to direct officers, employees or trained personnel but to “civilians” around the world of necessarily dubious genesis. So I look forward to the reply from the noble Baroness, Lady Williams.

Rape: Prosecutions and Convictions

Baroness Jones of Moulsecoomb Excerpts

Monday 14th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

My Lords, we are conscious of the disparity between the number of reported cases of rape and completed prosecutions. As the noble Baroness observed, the number of completed prosecutions in the year to 2020 was 2,102. However, there are signs of improvement, slight though they may be at this stage. While the number of referrals to the CPS dropped between 2018-19 and 2019-20, the number of persons charged consequent upon those referrals has increased. We are taking steps to ensure that such improvements are maintained.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, it is quite obvious to those who have been watching this situation that both the CPS and the police drastically need some training and education. The obvious people to go to are charitable organisations that work with women and girls who have been raped. Can the noble and learned Lord tell me whether the review will encompass those organisations and when it will report?

[Lord Keen of Elie (Con) [V]]

My Lords, it is of course important to see proper co-ordination between the police and the CPS to address these issues. The CPS is planning to consult on rape legal guidance, and the Joint National Disclosure Improvement Plan represents both the CPS and the police. In addition, we now have a joint inspection going on between the CPS and police inspectorates, which we hope will report in the autumn, in response to issues about rape and serious sexual offences.

Fatal Accidents Act 1976 (Remedial) Order 2020

Baroness Jones of Moulsecoomb Excerpts

Thursday 3rd September 2020 Grand Committee

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have to declare a personal interest because I have cohabited with somebody for more than 20 years, but I hope never to be eligible to claim this award. I do my best in this House to say “Well done” to the Government when I think they have got something right. It does not happen very often, but when I see something is improving legislation, then I say “Congratulations”, but this statutory instrument is tiny, the bare minimum to address the human rights breach which was identified by the Court of Appeal in the case of Smith. Worse still is the fact that it has taken the Government three whole years to bring these changes to Parliament. That is a three-year gap in which bereaved couples facing a discriminatory system have been left without compensation following the death of their loved ones.

The simple truth is that the Fatal Accidents Act is not fit for the 21st century. It became law more than 40 years ago in 1976, which was a different era of relationships and family values. Today’s remedial order is nothing but a sticking plaster to cover one issue raised by the courts. The Act still refers to and makes a distinction between legitimate and “illegitimate” children. Such wording was probably all right in the 1970s, but even the most senior politicians might be so-called illegitimate children. Nobody mentions that anymore because it is just not relevant. It is the same with the issue we are dealing with today. Statutes should not enforce archaic and, frankly, offensive language and the Government have to amend this. It is true that it needs primary legislation. When we have a quiet spell next year, I hope the Government will bring something back to fix this messy situation.

While I am talking about that, the word “accidents” is no longer valid when we talk about car crashes or traffic incidents. The Metropolitan Police does not use the word “accident” anymore. The whole road safety world abhors it because “accident” presupposes the cause of a collision. It presupposes that it was, “Oops! I shouldn’t have done than”, but there is almost always a real cause, whether it is drugs, drink or inattention. There is a cause, so the word “accident” has to go.

Other issues persist. Why do there have to be two years of cohabitation? What happens if somebody has lived with another person for 729 days, one day short of the two years? A relationship in which people have lived separately for 20 years is just as valuable, and more so, than a relationship in which people have lived together for two years. The Government are saying that a 20-year relationship lived apart is worth £0 on death. As other noble Lords have said, financial compensation is always going to be a crude measure for bereavement and will never come anywhere close to solving the hurt and healing the wounds. This order will ensure that a great many deserving people will get absolutely nothing.

The noble Lords, Lord Hain and Lord Thomas, have suggested that we go forward with the idea recommended by the Joint Committee on Human Rights and supported by the Association of Personal Injury Lawyers: the Government could open a public consultation on how to reform this clunky and flawed area of law. They could consult on whether something like the Scottish system of allowing courts the discretion to determine who should receive how much would work. Will the Minister take this away and raise it with her department?

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the next speaker would have been the noble Lord, Lord Marks of Henley-on-Thames, but he has not been able to join the debate, so I call the noble and learned Lord, Lord Falconer of Thoroton.

Probate Service

Baroness Jones of Moulsecoomb Excerpts

Monday 27th July 2020 Lords Chamber

[Lord Keen of Elie [V]]

My Lords, the introduction of a digital scheme is proving effective. Because of that, it was possible for probate staff to deal more effectively with applications during the Covid crisis. We are seeing a greater uptake in the digital service from legal professionals as well.

[Baroness Jones of Moulsecoomb (GP) [V]]

Given the comments already made by noble Lords, does the Minister think that adding various issues to probate, such as the signing of wills remotely by video call, could increase disputes and later administrative problems? Perhaps the probate service is being overloaded.

[Lord Keen of Elie [V]]

My Lords, in fact, we have taken steps to simplify the probate process. We are replacing affidavits with a statement of truth, accepting electronic-type signatures on probate forms, and allowing legal representatives to sign legal statements on behalf of clients. These steps will simplify and accelerate the process.

Crown Court (Recording and Broadcasting) Order 2020

Baroness Jones of Moulsecoomb Excerpts

Monday 8th June 2020 Lords Chamber

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, it always delights me to hear my name mispronounced in so many different ways.

As a lay person, the broadcasting of sentencing remarks seems to me a welcome step forward in modernising the English courts system and increasing public awareness of justice issues. It is also important that the public be given the right information about why a particular sentence has been given to an offender. Too many cases are sensationalised in the media, giving an impression that sentences might be too short or too lenient, with no information given about the reasoning behind them. I agreed strongly with the dangerous radical on the Conservative Benches, the noble Baroness, Lady Anelay, and want much bigger steps to be taken in the future.

I have two questions. First, how will the Government work with the media and civil society to improve public understanding of justice issues, so that these newly broadcast sentencing remarks can be more fully understood by the public? The orders contain restrictions relating to the misuse of broadcasts, but can the Minister make clear how the Government will ensure they are not misused on social media—for example, by far right groups, who increasingly doctor and selectively edit such broadcasts to create a dangerously warped world view among their followers?

On the Court of Appeal broadcasting order, I welcome the extension. It is very timely.

I want to make some points on open justice in the age of Covid-19, because there are some areas where we are losing transparency and openness. For example, many court cases are taking place remotely at the moment. That represents a rapid modernisation in our justice system, which tends like the House of Lords to move and develop at a fairly glacial pace. However, unlike with physical proceedings, where members of the public can just turn up at a court and watch them, it has become much harder to join, whether virtually or in person. Many people have been trying to access remote proceedings as observers but have found it impossible. For example, some court websites direct members of the public to contact a judge’s clerk but provide no contact details, and instructions on how to contact the said clerk are also missing. What will the Minister do with Her Majesty’s Courts & Tribunals Service to uphold the principles of open justice and ensure that members of the public are able quickly and easily to observe remote proceedings?

Royal Commission on Criminal Justice

Baroness Jones of Moulsecoomb Excerpts

Wednesday 3rd June 2020 Lords Chamber

[Lord Keen of Elie]

It is clearly intended that prosecution should be part of the royal commission’s mandate, and clearly the commission, once established, will invite contributions from all interested parties, so I am confident that the police will have ample opportunity to address the commission on the issues referred to.

[Baroness Jones of Moulsecoomb (GP)]

Will the terms of reference include a specific instruction to address the widespread racial and class injustices in our criminal system?

[Lord Keen of Elie]

I cannot at this stage specify the precise terms of reference that will be submitted. Of course, once those terms of reference are accepted and proceeded with, they cannot be altered.

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

Baroness Jones of Moulsecoomb Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

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

My Lords, Amendments 19, 20 and 21 are probing amendments tabled by my noble and learned friend Lord Falconer of Thoroton. I welcome the amendments, as we have a chance to debate these important issues again.

As a general rule, I do not like Governments taking Henry VIII powers. It is much better that primary legislation is made or changed, and that both Houses debate and decide on the issue, rather than procedures such as these, which are not a proper substitute, whether they use the affirmative or super-affirmative procedure.

That brings me on to Amendment 19, moved by my noble and learned friend. This is a particularly important amendment as, without it, criminal offences could be extended or amended, and the penalties for offences could be changed. That is unacceptable. I hope all noble Lords will agree that it is a matter for Parliament to decide, and that there is no justification for doing otherwise. I would therefore like to hear from the noble and learned Lord, Lord Keen of Elie, the justification for not accepting the intent of this amendment, if that is the Government’s position this afternoon.

The noble Lord, Lord Thomas of Gresford, made the point that this is no way to make new law and new offences. I very much agree with that. There should be no cases of new offences having penalties agreed without the consent of Parliament, where that would normally be the case. But these powers could be used to circumvent that.

My noble friend Lady Kennedy of Cradley made the point that we have seen very few of these types of agreements in the last 60 years, and that the powers and procedures proposed here do not seem justified in that case. My noble friend also made reference to reports that statutory instruments in this area risk being struck down by the courts. It would be good if the noble and learned Lord, Lord Keen of Elie, could address that point when he responds to this debate shortly.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, Amendment 19 is a very important amendment to probe the Government on what they anticipate the application of Clause 2 will be. I very much enjoyed some of the other contributions today, particular that of the noble Lord, Lord Thomas of Gresford, which was particularly scathing and deserves to be in a newspaper somewhere. I loathe the Government trying to make these power grabs. The idea that they can just extend the concept of a crime is inherently damaging to democracy.

In particular, the key question that I need the Minister to address is in what circumstances he foresees a private international law agreement creating or amending criminal offences. As I understand it, the Bill and the agreements that it seeks to implement are entirely focused on the resolution of disputes between individual people or companies. Can he tell us what situations would give rise to any criminal liability, as opposed to civil liability? Does he anticipate that we will attach criminal fines and imprisonment to civil disputes? If there are not any good examples, why is this provision contained in the Bill and should your Lordships’ House not amend the Bill exactly in the way proposed by the noble and learned Lord, Lord Falconer of Thoroton?

[Lord Hain (Lab)]

My Lords, I will speak to Amendment 20 to Schedule 6 in the name of my noble and learned friend Lord Falconer on the matter of proper consultation, which it would require. As a former Secretary of State for Wales and still living here, I am aware that no legislative consent Motion is required for this Brexit-consequential Bill and that the Welsh Government appear to seem at least content with it. But, as my noble friend Lady Kennedy highlighted, there are real concerns about the delegated powers to join future private international law agreements.

I understand that the UK Government have provided assurances to the devolved Administrations that, first, there are not any agreements in view at the moment that touch on matters within devolved competences and that, secondly, if any such agreement emerges the UK Government will guarantee to consult the Welsh Government, and presumably the Northern Ireland Executive and the Scottish Government. I would be grateful if the Minister specifically confirms this when he replies. I ask because, for nearly four years, Conservative Governments have had a sorry record of failing properly to enable devolved Governments to participate in framing a series of European Union withdrawal and Brexit-related Bills. Consequently, UK Ministers were regularly accused, as noble Lords might recall, of a power grab—of using the transfer of functions from Brussels back to the UK to recover to Whitehall previously devolved powers.

The First Ministers of Wales and Scotland both repeatedly complained about a failure of Whitehall Ministers to consult. Indeed, I have argued exactly that in your Lordships’ House on several occasions. There were also refusals to grant legislative consent Motions in Wales and Scotland until a satisfactory series of outcomes were belatedly conceded by the UK Government. This is not a good advertisement for the unity of the UK when it is under greater threat than ever.

I will put on record some specific examples of a failure to build consent, as Amendment 20 implies must be the case, because these must not be repeated. The 2017 EU withdrawal Bill, as originally drafted, represented a major assault on devolved competence. It was only as a result of very strong cross-party support in your Lordships’ House that the Government were forced to agree to a default position that all powers vested in the EU on matters of devolved competence would revert to the devolved institutions when we left the EU. This has led to a more consensual approach to the work of developing common frameworks where all four Governments agree that there needs to be a shared understanding and approach across the UK.

Prisoners (Disclosure of Information About Victims) Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[Baroness Watkins of Tavistock (CB)]

My Lords, I support the amendments in the second group in the name of the noble Baroness, Lady Bull, and the noble and learned Lord, Lord Hope, particularly in relation to Amendments 2 and 4, which are reiterated in subsequent amendments. I reinforce my full support for the Bill and congratulate the Government on bringing it forward.

I support the concept of removing any discretion to disregard non-disclosure by prisoners when Parole Boards are reviewing their cases. This is because there is a very small minority of people who may have severe mental health problems but who are also well able to give the impression that they have complete amnesia. I was interested in what the noble Lord, Lord Thomas of Gresford, said earlier about healthcare professionals believing what they are told by people with mental health problems. I actually worked in Broadmoor and introducing as part of the concept as a trainer that you should not read a patient’s records until you had got to know the patient a bit. That is sometimes quite shocking because you trust people but then find that significant things they have told you are in fact extremely inaccurate. So we must be clear that medics are not on the whole easily fooled by the very small minority of people who are able to display very significant selective amnesia.

Of much more interest to me at the moment in relation to this Act is that the Mental Capacity Act 2005 and its subsequent amendments, as referred to by other noble Lords, particularly the noble Baroness, Lady Barker, indicate that we have a growing population with significant acquired brain injury, severe psychosis and, of course, a range of neurodegenerative progressive disorders, known largely as the dementias, which mean that prisoners who have been in prison for 15 to 30 years may well have developed cognitive difficulty during the period of their imprisonment. When they then apply to the Parole Board, it is right that they have full access to a medical assessment in line with their human rights. I believe there will be a proportion of people who apply in this way who do not have sufficient cognitive ability at the time when they come to the Parole Board that they will be able coherently to remember the kind of issues that we have raised during this debate.

In summary, I support the approach of the charity Rethink Mental Illness that these amendments would provide an explicit reference to mental capacity, meaning that there would be consistency adopted by Parole Boards when reviewing individual cases. I would like to see the amendments supported, but I am also very aware that, in the review of the Mental Capacity Act, we were able to deal with some things by ensuring that they would be put into guidance for practitioners. That may be something to consider in relation to the amendments tabled by my noble friend Lady Bull.

[Baroness Jones of Moulsecoomb (GP)]

I wish to speak in favour of this group of amendments, particularly those tabled by the noble Lord, Lord Thomas of Gresford.

Where a Newton hearing has taken place in respect to the relevant facts of an offence, it makes sense that those findings must be taken into account by the Parole Board when making a decision affected by the Bill. In effect, a rigorous “mini-trial” has been carried out, and a judgment given, so this information should quite obviously be used by the Parole Board.

In some circumstances, this might go in favour of the prisoner; in others, it might go against them. Either way, justice will be served by using the proceeds of Newton hearings. Without doing so, the Parole Board is at risk of ignoring or contradicting the findings of the Newton hearing which set the grounds for the prisoner’s sentence in the first place. That would not make sense and would create ripe grounds for judicial review of the Parole Board’s decision. It is almost inevitable, I would have thought, that a judicial review would conclude that it must be taken into account by the Parole Board. In the interests of clear legislation, and for the clarity of prisoners and victims, the Government really have to accept these amendments.

[Lord Naseby]

My Lords, I do not wish to contribute at this point, but I will listen to the Minister’s response.

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

Baroness Jones of Moulsecoomb Excerpts

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

[Lord Goldsmith (Lab)]

My Lords, I was looking forward to hearing the noble and learned Lord, Lord Judge, and saying that I agree entirely with what he said. I still imagine that I will agree with him, even if he has to come in a little later in the debate.

I start by declaring two interests. The first is as a practising lawyer whose practice includes international, commercial and public law cases, so some of the things discussed today affect the practice that I carry on. The second, and more important for present purposes, is that I am the recently appointed chairman of your Lordships’ EU Sub-Committee on International Agreements. It is in that capacity that I put my name forward to speak today.

My focus is on Clause 2. I have not spoken in any of the other debates that have taken place but, for all the reasons powerfully advanced by my noble and learned friend Lord Falconer of Thoroton, my noble friend Lady Taylor of Bolton and the noble Lord, Lord Pannick —and in the future, no doubt, by the noble and learned Lord, Lord Judge—I see this as a very unusual and constitutionally unprecedented thing. I could not improve on the speeches made already, including those of the noble and learned Lord, Lord Mance, in an earlier debate, and the noble Lord, Lord Anderson of Ipswich.

However, I want to deal with one aspect in my capacity as chairman of the EU International Agreements Sub-Committee. It has authorised me to write to my noble friend Lady Taylor expressing its agreement with the conclusion that the Constitution Committee had reached in its report and concurring with its opinion that the clause, if it goes through, would reduce parliamentary scrutiny of international agreements inappropriately.

It is not an answer, as my noble and learned friend Lord Falconer has rightly said, to say that this is dealing purely with technical things. I know from experience that, although they may be technical, they are matters of great moment and matters of great importance both to the people who are making agreements and to this country. It is common for lawyers to be asked to advise which law should be put into an agreement or which law should govern any disputes that have to be dealt with, and the Bill would affect that.

As I understand it, two principal answers have been given about why the Government say this is appropriate. One is that all agreements will have been subject to parliamentary scrutiny, and that is the bit on which I particularly want to focus. The problem with that is that, as the Constitution Committee said,

“current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed”.

That is particularly so because of the gaps in the CRaG coverage—some of them have been mentioned today, such as model law—and the timing of CRaG means that an agreement will have been concluded by the time, strictly speaking, that the CRaG processes come into effect.

I shall quote one paragraph, paragraph 19, from the Constitution Committee’s report on CRaG, Parliamentary Scrutiny of Treaties. Professor David Howarth from the University of Cambridge observed:

“From the Whitehall point of view, everything is perfect. The whole process is under the control of Ministers. Parliament does not really get a look-in until after signature and, even after signature, the CRAG processes are very difficult for anyone to operate, especially in the Commons where the Government controls the agenda.”


That is the problem with CRaG.

The committee which I am honoured to chair may be an important part of the response to that lack of scrutinising ability. We are only in the foothills of our work, and we do not yet know how well this will work. Quite a lot will depend on how the Government engage with us and with Parliament more generally. I hope that they will wholeheartedly engage not only once an agreement has been concluded but at earlier stages. I know there is some disappointment already that, for example, the amendments made by this House to the previous Trade Bill have not found a place in the current incarnation of the Trade Bill.

Some assurances have been given in the context of the conclusion of trade agreements. Dr Fox made some important statements about the consultation and engagement that will take place. In its paper Public Consultation on Trade Negotiations with the United States, the DIT repeated the assurances that it gave. For example, paragraph 39 of that report repeats commitments made in its earlier paper, including,

“confirmation that at the start of negotiations, the Government will publish its Outline Approach, which will include our negotiating objectives, and an accompanying Scoping Assessment, setting out the potential economic impacts of any agreement.”

The second argument perhaps put forward is that the issue will be only yes or no and therefore the affirmative procedure, as proposed in the Bill, will be enough. I am not persuaded by that argument. It will often not be a question of yes or no. For example, there are treaties which contain options for the member states, such as powers to derogate from particular provisions. Under this binary approach to approval or engagement by Parliament, how will those treaties be considered? Or there may be methods of implementation which are available under the agreement. But more fundamental is the fact that if there is a power to amend that could strengthen the hand of the Government in negotiations, and there is some evidence that in some countries where scrutiny is not limited to yes or no, that is the case.

It seems inevitable that unless the Government drop this, as many noble Lords are urging them to do, this will come back on Report. If in doing so, the Government intend to rely upon the argument about the effect of parliamentary scrutiny under CRaG, they will need to give a very clear explanation of how they will engage with Parliament and the EU International Agreements Sub-Committee so that we can see the reality of what parliamentary scrutiny of the negotiation and conclusion of agreements will be. I look forward to those explanations being given, and in the meantime I support the amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, like the noble Baroness, Lady Taylor, and the noble Lord, Lord Foulkes, I am not a lawyer, but I care about democracy and I care very much that if the Government make promises, they should actually deliver on them. Clause 2 is a case of the Government reneging on promises made only last year. I voice my concern about Clause 2, which would allow Ministers to subjugate our national law to international agreements and the jurisdiction of foreign courts, with minimal parliamentary scrutiny from people such as noble Lords, who actually know what they are talking about.

Last year, the Government promised us that we would take back control of our laws and our courts; there was no caveat that we would then delegate our laws to international organisations with nothing more than a tick-box exercise by Parliament. The clause gives far too much power to international trade organisations and allows model laws to be imposed on us at the whim of a trade Minister.

I am also concerned that this measure would be better addressed in the Trade Bill, so that we could develop a comprehensive and coherent system of scrutiny for agreements relating to international trade. Otherwise, we end up with different scrutiny arrangements for trade agreements and the private international law agreements that might go alongside them. Will the Minister please explain how this clause fits with the Government’s promise of Parliament taking back control of our laws and courts? I look forward to Report and the vote that I am positive will happen.

[Lord Thomas of Gresford]

Two questions arise when laws are made by secondary legislation: is there democratic legitimacy and has there been proper scrutiny? If private international law raised simply technical issues, that might be less important. But as has been said so often today, private international law raises a wide of range of matters; in particular, family law issues, where basic human rights are frequently involved.

On parliamentary scrutiny, the Minister referred to the ample opportunity for debate in the affirmative procedure. We all know about the affirmative procedure. It is a yes/no question, as the noble and learned Lord, Lord Goldsmith, pointed out a moment ago. The matters before the House cannot be amended and frequently, nothing happens as a result of any Motion that may be moved in opposition. If it is Her Majesty’s Opposition’s policy not to vote in favour of a fatal amendment, the whole process is completely nugatory. I have heard Labour Whips tell their members not to vote in the case of a fatal amendment simply for that reason alone. Their turn will come.

The affirmative procedure is not in any way proper parliamentary scrutiny. Scrutiny under the Constitutional Reform and Governance Act 2010 has proved to be a non-event. It has already been quoted, but I will do so again: the Constitution Committee referred to that procedure being “limited and flawed” and indeed never properly applied.

It could be said that you can have democratic legitimacy providing there is direct participation in the legislative process by means of consultation. It is very noticeable that in this Bill there is no provision for consultation. Schedule 6 is devoid of any mention of it. That gives an opportunity for those affected by legislation directly to influence its content. Consultation is not everything: it has its problems. There are issues, for example, about the quality of the consultation document. That document may not reach the hands of everybody who is affected. The choice of who gets the document will be with the Government. Organisations or individuals may not have the time or the skills to deal with it. Strong groups who are well organised may have a disproportionate influence in the consultation process. It is of course useless, unless the Government are prepared to take the views of the consultees into account.