Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

So the debate so far has not clarified my mind, but I think that the simplistic solutions that have been offered by some of the speakers moving these amendments need to be challenged. I congratulate my noble friend Lord Horam on raising the big dilemma that faces us all. We do not want the equivalent of Alternative für Deutschland and the extreme-right parties of other countries being strengthened and provoked if we do not get this right.

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

My Lords, I speak solely as a lawyer. I did not speak at Second Reading; I would have needed to apologise for and explain that a few years ago. Consistently, we have been permitted to engage at a later stage, and that is no longer so.

I confess that I have been working hard to try to catch up with the legal appreciation of the effect of this Bill. I wish to respond to the noble Lords, Lord Kerr and Lord Horam, as a lawyer and in terms of the consistency of the Bill with our international obligations under the refugee convention. Under Article 35, we and our courts are required to have regard to what UNHCR says on the proper interpretation of the Bill in applying it in this country.

Although my views on the Bill overall are still not fully formed, as a lawyer I have come to the clear conclusion that Clause 29 and the clauses that follow Article 31 most directly for present purposes are simply impossible to reconcile with the clear jurisprudence of our courts of the most authoritative nature. For that, reason, I take essentially the same root-and-branch objection to Clause 11 and say to the noble Lord, Lord Horam, that I wonder whether this large proportion of people who, understandably, object to the problems this country has with asylum—and who would wish to exclude, so far as possible, those who are trying to gain refugee status here—would add, “And we don’t care a fig if what we are doing to give effect to that policy flatly contradicts our international law obligations under the refugee convention”.

Intrinsically, the group of clauses to which I refer, including Clauses 31 and 36, bear very closely on Clause 11, which is of course the subject of this group of amendments. The centre of the Bill’s approach, and that of Clause 11, is to try to create a particularly disadvantaged subcategory of asylum seekers, essentially on the footing that they fall outside the protection of Article 31 of the convention. The fact is that Article 31 is addressed both in Clause 31 and, as it happens, in closely similar terms, in Section 31 of the Immigration and Asylum Act 1999. So there it is: we are talking about Article 31 of the convention, Clause 31 of the Bill and Section 31 of the preceding legislation, the 1999 Act.

Clause 36, more particularly, seeks to override well-established case law most directly. All this is explained in the series of authoritative legal opinions that have been addressed, certainly to me and probably to other lawyers in the House, by the Bingham Centre, the UNHCR and Amnesty—and by the Joint Committee on Human Rights, which is a very authoritative body of both Houses.

The Bill now seeks to overcome the effect of a divisional court case known as Adimi. I confess that, way back in the last century, I gave the leading judgment in that case but, much more importantly, it was approved explicitly on the critical questions—of coming here without delay and so forth—by the Appellate Committee of your Lordships’ House, presided over by the late and much-lamented Lord Bingham of Cornhill, in a case called Asfaw. The reference is 2008 1 AC 1061. It is a compelling leading judgment and indicates that the position, authoritatively decided in accordance with UNHCR advice and all the earlier indicia, is not compatible with what Clause 11, by reference to Clauses 31 and 36, seeks to do: to create this category B, to be regarded as illegal entrants to this country. It is on that basis, and not the narrower although well understandable objections to Clause 11 from other quarters, that I shall particularly resist the inclusion of Clause 11 in the Bill.

[The Lord Bishop of Durham]

My Lords, in rising to support the proposal that Clause 11 do not stand part, to which I have added my name, I declare my interest in relation to both RAMP and Reset, as set out in the register. Along with colleagues on these Benches, I looked carefully at the possibility of making amendments to Clause 11 along the lines of those proposed, and reached the conclusion that the only thing we could fully support was the removal of the clause.

The proposal to separate refugees into two groups depending on how they arrived in the country, and whether it was their first country of arrival, are inimical to the whole basis on which the refugee convention is built. It is a betrayal of the letter and spirit of it. The idea that asylum must be claimed in the first country of arrival has no basis in international law; this is the view of the UNHCR and of the legal community. If imposed, it would place an unsustainable burden on a small number of nations, most of which are already under immense strain. The whole purpose of an internationally agreed convention is to recognise that the responsibility for the care and support of refugees needs to be carried by the whole global community. We recognise this as a nation by setting up and running resettlement schemes, working with the international community. So to try and declare this for those who claim asylum on arrival here, even if they have passed through other nations, does not logically fit with our recognition of the need for global collaboration and a global sharing of the demands.

I say to the noble and learned Lord, Lord Clarke, that the danger is that we go into a wider refugee debate rather than debating the clause. The vast bulk of the 80 million refugees have no desire to go anywhere other than back into their own country. That is where most of them wish to go; I have seen that and talked to them first-hand.

However, let us for a few minutes work with the idea of claiming asylum only in the first nation of arrival, and see how this would work with the proposals in Clause 11 for our nation. We are an island nation; therefore, no one could ever make a first arrival here by land—no one in group 1. We are an island nation, so arrival by sea is a clear option, but none of us wants to see arrivals by sea in unsafe boats. So the safe ways must be via ferries, or cargo or passenger ships coming from longer distances away. The likelihood that such journeys could be undertaken in a way that is deemed legal under the Bill is very slim.

Those fleeing persecution, domestic violence, war and the impact of climate change may well have to do so without all the relevant paperwork, and certainly with no valid visa. They might just secure a paid-for passage without all this but it is highly unlikely. It is more likely that they will find themselves having to stow away in a van, lorry or container, or somewhere on the boat, so they will arrive having travelled illegally—hence they go into group 2. The number who would travel in complete fulfilment of the Bill in a legal manner would be minimal—almost no one in group 1.

We are an island nation, so arrival by air is the other clear option. Stowing away on an aeroplane is decidedly harder than on a ship but might just be possible. However, I think we all understand it is illegal, so such arrivals would go straight into group 2. Perhaps someone somehow manages to purchase a ticket and travel with their own passport but with no visa. As it happens, I was nearly refused entry to a plane when returning home from Portugal last autumn because of an issue over my Covid vaccine passport, so how one would succeed without a valid visa is an interesting question. It might just happen; however, on arrival, there is no visa so they could easily be deemed an illegal arrival, therefore in group 2.

Perhaps they have a visa as a student, so entry happens legally. But this student is not simply studying; they are fleeing because they are gay and know that they will be persecuted in their home nation if they come out. That will be made worse for them because they also come from a minority tribe who already feel put down, so on arrival they claim asylum on the basis of their sexuality and the likelihood of persecution. However, this was not the purpose of their visa. This is not theory: it is the story of Azmat, who I, along with several other Peers, met online last week. Such people do not qualify for group 1 but go into group 2.

The UK resettlement scheme and the Afghan citizens resettlement scheme are not open to all the nationalities most commonly accepted as refugees by the UK Government. Vulnerable people requiring protection will therefore become group 2 refugees. People cannot jump a queue where there is simply no queue to join.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, it is a great privilege to follow the noble Lord, Lord Walney. Noble Lords will recall—if they were present in Committee—that, in supporting the Bill, I did none the less raise some mild questions about noise. It is a shame the noble Lord, Lord Hogan-Howe, is not here, because I thought he was very compelling in the arguments he made, as a former police chief, as to why these measures around noise were manageable and relevant.

I will listen very closely to what my noble friend the Minister says on this, but I feel pleased that the Government have come forward with the clarifications that they have. I would add—to build on what the noble Lord, Lord Walney, said—that when I think about the Bill and the reason why I support the measures within it in principle, I start from the summer of 2019. I did mention this before, at an earlier stage of the passage of this Bill. This was a point at which there were new forms of protest and demonstration through the summer, and a lot of people who, unlike noble Lords, do not go on protests, were rather concerned about the way that things such as blocking Waterloo Bridge and bringing Oxford Circus to a complete standstill—and this went on for days—were supported by Members of Parliament and very senior high-profile people.

That kind of behaviour was so alien to the way in which people in this country normally protest. It was very alarming to people and we have to remember that we cannot argue in favour of that aspect of our democracy in terms of protest, without also reminding ourselves that some people who were alarmed at the support for that kind of behaviour also looked at Parliament in real concern when we did not respect democracy in the years before that in the way that we ignored the change that some people wanted to make by using the ballot box. I do think we have to see this in the bigger picture.

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

My Lords, we are at Report stage—although it would be very easy to misrecognise it as Second Reading. I have been supporting the Government this afternoon—but not at this stage and probably not for most of the rest of the debate.

The fact is that this amendment—and most that follow—to my mind, we must support. I entirely accept that it is nonsensical to suggest that by Clause 56, and most of those that follow, the Government is intent on repression. They are not trying consciously to suppress our hallowed rights of protest, of demonstration and of assembly. That is not the position. But I suggest strongly that that is the public perception—that is what the public believe—and understandably so, because it is such an overreaction to anything that has happened.

I too excoriate Insulate Britain: they behaved outrageously and undemocratically, so flatly contrary to the rule of law and wider interests, that we must amend to ensure that they are arrestable and imprisonable without going through the process of contempt of court proceedings in future. But these provisions, as the noble Lord, Lord Cormack, said, simply lack all common sense, they lack all balance and measure, and they are counterproductive.

The noble Baroness behind me suggested that we all, and the wider public, protest things such as stopping the Tube trains, but I would remind your Lordships—I think I have just read—that those who committed that apparent offence were resoundingly acquitted. The fact is that if we pass laws such as this law, that is going to be the reaction: the Government are going to be regarded as tyrants and the public will not play.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I tried to say that I think we do not want to muddle up too many things. The Bill might have been brought forward in order to deal with the popular revulsion at things such as the M25 sit-ins or getting on top of the Tube, and we have heard that from a number of noble Lords.

The point about this set of proposals, though, and things such as the triggering noise, is that they do not solve that problem. That is what drives me mad. The second lot of amendments—which were brought in anti-democratically in terms of process—at least looked like they referred to that set of egregious demonstrations. So that is that bit.

One thing that has been said which I think is very important is that there is a fractious atmosphere in society, which the noble Baroness, Lady Stowell, talked about last time we had this discussion, which is that people feel very strongly about some of the issues of the day. They are not prepared to always say that they support the right of demonstration; they think that something else is going on.

But one thing they definitely think is that the police are biased. They think that the police are erratic. Some people will say, “Well, the police won’t intervene because they’re all too busy taking the knee or driving around in rainbow-coloured vans”. Other people will say, “The police are acting like far-right stormtroopers protecting different types of people.” There is a public debate going on about the role of the police.

So, my objection to these amendment is that not only does it concentrate on noise, which nobody has ever complained about—who has brought that up?—but it puts the police in an even more invidious position. I do want to know how the Government will deal with that. The SOAS policy briefing, which I thought summed it up well, said that the Bill

“compels the police to make decisions about whether protests can go ahead, and therefore forces the police to become a visible and controversial actor in ordinary political debate.”

I think that this will make the position of the police much worse, so even if you are not on the side of the right to protest with no ifs and no buts—as I am—from the Government’s point of view and the Home Secretary’s point of view, who say they are doing it to help the police, they are actually putting the police in a position where they are wandering around assessing noise levels and therefore choosing which demos go ahead, which everybody will think is to do with politics and not procedure. So there seem to me to be some unintended consequences of that approach.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

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

My Lords, I too support the amendment of the noble Lord, Lord Pannick. Strongly though I support it and absurd though I too think it is to allow for some possibility of a jury trial with the jury sitting otherwise than in the actual courtroom, I had no intention of speaking tonight until I learned that my noble and learned friend Lord Judge could not. As I seem to be the last judge standing this evening and feel so strongly about this, it seems that I should say a word. But I urge all of your Lordships to recognise that if my noble and learned friend had been speaking, he would have said the little I propose to say so much more tellingly and convincingly that the House really ought to add enormous weight to it.

All I say is that the whole value of a jury, sacrosanct in our law of course, is that they are there and part of the atmosphere. They watch the whole thing unfolding, see the witnesses and sense the entire development of the arguments as they emerge. My noble friend Lord Carlile made a number of these points, as the noble Lord, Lord Macdonald, has just done. The whole aura of the process and the fact that the jury recognise in the courtroom that they are, for the first time, having to apply themselves to this critical question—is this man or woman guilty or not guilty?—is lost and dissipated if they are not there. I urge your Lordships not to provide for this suggested possibility, for who knows in what circumstances it would be? They can be only circumstances that do not justify having a separate jury.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we agree with the noble Lord, Lord Ponsonby, on the amendments he moved or spoke to on proceedings involving children and health screening, and with the noble Lord, Lord Carlile. We support those amendments, but I will speak to Amendment 97CA from the noble Lord, Lord Pannick, on the use of live links in jury trials, to which I have put my name.

This amendment raises two important questions about the nature of juries and of jury trial. First, how important is it to the trial process that juries see and hear witnesses give their evidence live? Secondly, how important is it to the trial process that the relationship and balance between judge and jury is live rather than remote? On the first issue, the noble Lord, Lord Macdonald, and the noble and learned Lord, Lord Brown, made the point that jury trials depend, more than anything else, upon the ability of jurors to weigh up the evidence of witnesses. They have to assess two things: veracity, or whether the witness is trying to tell the truth, and accuracy, or whether he or she has got it right.

As others, including the noble Lords, Lord Pannick and Lord Carlile, have said, after nearly two years of the pandemic we have all become completely familiar with the process of remote discussion and meetings. None of us, I feel, would now argue that remoteness makes no difference. In this vital area of our national life, as the noble Baroness, Lady Bennett of Manor Castle, pointed out, we entrust decisions about the guilt or innocence of those charged with serious crimes to juries of 12 who listen to and weigh up the evidence of witnesses, and make decisions about truth or falsehood, reliability or inaccuracy, honesty or dishonesty, and intent, accident or misadventure. Those jurors will certainly consider objective evidence that has the same effect when seen or heard remotely as it has when seen or heard directly. But much of the evidence they will hear, and usually the most critical evidence in jury trial cases, has to be subjectively judged, as the noble Lord, Lord Macdonald, said. That is done by references to the witnesses’ demeanour, body language, response to cross-examination and emotional responses.

These are matters on which juries might initially and quite legitimately disagree. Their assessment—the different assessments of all 12 of them—will be the subject of detailed discussion during their deliberations and depend upon impressions. We would be undermining our jury system by depriving jurors of the opportunity, in the case that they decide, to share their experiences of the witnesses and the experiences that they have had live. I do not believe that undermining the jury trial in this way can possibly be justified.

On the second point about the presence of the judge, counsel and jury in the same place, the role of the judge and jury and the relationship between them is a delicate one. I agree with the noble Lord, Lord Pannick, that the judge’s position is to ensure that trials are conducted in a responsible and serious way. I also think there is considerable importance in that relationship that the independence of juries is maintained. A stock sentence that judges quite properly use when summing up is when they tell the jury, “It is a matter for you, members of the jury,” and it is.

However, for juries to make the decisions they are charged with making, they must not feel to be, seem to be or, still less, actually be at a disadvantage compared to the judge who has seen and heard and assessed the witnesses live. When the judge recounts a particular piece of evidence in summing up, juries must not be cowed or persuaded into accepting what they may perceive to be the judge’s view of the evidence. They must be able to say to each other: “He or she may have said that, but I did not believe that witness—did you see how scared they looked?” That is what jury independence means. Jury independence is fundamental to our system and why it is so important. For that reason, I completely support the amendment from the noble Lord, Lord Pannick.

Sarah Everard: Home Office Inquiry

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 9th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I could not agree more with the noble Baroness that the truth must come out—both at pace and conducted in a way that would satisfy the family. As I have said, if the non-statutory inquiry cannot meet its commitments, it can be converted to a statutory inquiry.

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

The Minister must be aware of the deep public concern following the Sarah Everard case. Does she not agree that the fiercely independent Macpherson inquiry and report into the tragic death of Stephen Lawrence went a long way towards restoring the trust of the black—and wider—community in policing? Can the Minister suggest any reason why a similar, judge-led inquiry with similar powers, now under the 2005 Act rather than the Police Act 1996, would not be the obvious best way of examining predatory police culture in certain quarters and restoring the trust of young women in this country in our police force, which is surely a vital consideration today?

[Baroness Williams of Trafford (Con)]

I think the House agrees that trust and confidence in the police must be restored. We wish this inquiry to proceed at pace and to get to the nub of the various issues that it will look into. If the Home Secretary is not satisfied that a non-statutory inquiry is fulfilling those commitments, she can convert it to a statutory inquiry, but I must say that I think the whole House seeks the same end from this inquiry.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

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

My Lords, I have no time today to talk about what is in this Bill, only to talk about what is not but plainly should be: IPP prisoners, a subject already touched on by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Blunkett. This Bill represents a further step toward sentence inflation and must inevitably lead to a greater prison population and more overcrowding. Remedying the IPP regime would not only help cure a great and growing injustice in our system, it would also make some contribution—if perhaps only a modest one—towards reducing, instead of endlessly increasing, the prison population.

The very first sentence of the impact assessment for this Bill, under the heading,

“What is the problem under consideration?”,


speaks of too many offenders

“not serving a sentence that reflects the severity of their crime”.

Tell that to the remaining 1,722 IPP prisoners never yet released from their sentences—sentences which, by definition, were imposed before 2012, when the whole discredited IPP regime was abolished by LASPO, although, alas, only prospectively, not retrospectively.

Of those 1,722 prisoners—these figures come from June of this year—96% have passed their tariff expiry date and 555 have served over 10 years beyond their tariff term, which is the term specified, in the words of the impact assessment, to reflect

“the severity of their crime.”

Astonishingly, of those, 207 have actually got a tariff term of less than two years. Are these not appalling figures?  Indeed, many of them have served well beyond the statutory maximum determinate sentence for their offences.  Frankly, this is a system of preventive detention which some know effectively as internment.

That is not the end of the problem because in addition there are now in prison a further 1,332 IPP prisoners recalled under the licence provisions; therefore, making more than 3,000 IPP prisoners still incarcerated in our prisons. Recalls are a growing problem. The number is increasing year on year. The great majority are not for further offending but rather for often comparatively minor non-compliance with release conditions, such as not giving their correct or up-to-date address—and they do not always find that easy—or for mental health reasons.

All these IPP prisoners, whether never yet released or recalled, have to discharge that most difficult of burdens to prove for release that they would then be safe. In the meantime, they and their families live in a Kafkaesque world of uncertainty, hopelessness and despair. It is small wonder that there have been many suicides among this population: twice as many IPPs even than ordinary life sentence prisoners. It is self-harm. It is also small wonder that Justice Ministers past—Tories such as the noble and learned Lord, Lord Clarke of Nottingham, and Michael Gove—have recognised the manifest injustice of all this and called for reform. Indeed, on 31 July I hope at least some noble Lords read Matthew Parris, who devoted his whole column to urging the Government to have the political will—as he put it, the guts—finally to deal with the gross injustices that these prisoners continue to suffer. We cannot afford to miss this opportunity at long last to do something for this cohort.