Asylum: UK-Rwanda Agreement

Lord Goldsmith Excerpts

Monday 22nd January 2024 Lords Chamber

Moved by

[Lord Goldsmith]

That this House takes note of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership Agreement to Strengthen Shared International Commitments on the Protection of Refugees and Migrants.

Relevant document: 4th Report from the International Agreements Committee (special attention drawn to the agreement)

[Lord Goldsmith (Lab)]

My Lords, there are two Motions in my name on the Order Paper, and I shall speak to both. The first ask the House to take note of the fourth report of the International Agreements Committee, which I have the honour to chair. The report addresses the UK-Rwanda asylum partnership agreement, known as the Rwanda treaty. The second Motion invites the House to agree with the committee’s unanimous conclusion that the Government should not ratify the treaty

“until the protections it provides have been fully implemented, since Parliament is being asked to make a judgement, based on the Agreement, about whether Rwanda is safe”.

Both Motions are tabled on behalf of the committee and not on behalf of the Labour Party.

The second Motion engages Section 20 of the Constitutional Reform and Governance Act 2010. I will explain the significance of this and comment briefly on the statutory framework under which the committee’s report was produced before turning to the substance of the issue. The mandate of the International Agreements Committee is to scrutinise treaties laid before Parliament which the Government propose to ratify. Section 20 of the Constitutional Reform and Governance Act, or CRaG, gives Parliament 21 sitting days to review a treaty. The main essentials of the process for parliamentary scrutiny of treaties have not changed for 100 years, since 1924, when Foreign Office Minister Sir Arthur Ponsonby made a commitment that the Government would lay all treaties before Parliament for 21 days before ratification. CRaG codified this practice in legislation but did not substantially alter it.

The International Agreements Committee has previously reported on a range of deficiencies in the CRaG scrutiny process. This is not the occasion to debate those in detail, but the committee’s current report does highlight that consideration of the Rwanda treaty brings into sharp focus the inadequacy of a 21-day scrutiny period for reviewing treaties of significant public interest and political importance. Our task in this case was made more difficult by government delays in publishing key information and providing responses to our inquiries.

Our consideration of the Rwanda treaty also highlights the limits on Parliament’s role in the scrutiny of treaties, which is weaker than in many other countries. If either or both Houses wish to express concerns about a treaty, Section 20 of CRaG provides that they must pass a resolution before the end of the 21-day period that the treaty should not be ratified. If the House of Commons passes a Section 20 Motion, the Government must lay a Statement and wait a further 21 days before they can proceed. That process can be repeated, which means that, in theory, ratification could be indefinitely delayed, so long as the Commons continues its objections. The Government, however, can override a Section 20 Motion passed by this House.

This is the first occasion since CRaG came into force in 2010 that either House has considered a Motion under Section 20 of CRaG, which perhaps illustrates the inadequacies of the current framework for treaty scrutiny in general and the specific concerns that the committee has about the way the Government have proceeded in relation to the Rwanda treaty—I will expand on this as I address the substance of the report.

The treaty was negotiated between the UK Government and the Government of Rwanda as a response to the judgment of the Supreme Court on 15 November 2023 that the Government’s policy of sending asylum seekers to Rwanda was unlawful. The Supreme Court found, relying heavily on evidence from the United Nations High Commissioner for Refugees, that there were deficiencies in Rwanda’s asylum system and evidence of refugees being sent on to unsafe countries—a practice known as refoulement—in breach of Rwanda’s international obligations. The Supreme Court did not doubt the good faith of the Government of Rwanda but found that the practical application of asylum and refugee law was inadequate. On this basis, the Supreme Court concluded that there was a risk of refoulement in relation to any asylum seeker sent by the UK to Rwanda.

The Rwanda treaty sits alongside the Safety of Rwanda (Asylum and Immigration) Bill, which will have its Second Reading in this House on 29 January. This debate is not about the Bill, but aspects of the Bill are relevant to our consideration of the treaty. In particular, Clause 2 of the Bill provides that:

“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”.


Clause 2 is an ouster clause and has the effect that the Bill’s declaration of the safety of Rwanda could not be subject to appeal or judicial review in any legal proceedings.

The Government’s case is that the new arrangements they have negotiated with Rwanda, which are now set out in a legally binding treaty that replaces the previous memorandum of understanding, change the factual position considered by the Supreme Court and thus allow Parliament to conclude definitively that Rwanda is safe. The Home Secretary’s foreword to the policy statement accompanying the Bill and the treaty published on 12 December referred to the treaties as containing,

“significant new protections in response to the Supreme Court’s conclusions”.

And went on to say:

“This work will enable Parliament to conclude that the Supreme Court’s judgment has been addressed and that Rwanda is safe for relocations under the Migration and Economic Development Partnership”.


The committee therefore considered that its job was to consider whether the protections in the treaty do indeed enable Parliament to conclude now that the Supreme Court judgment has been addressed and that Rwanda is, in fact, safe. The committee agreed that, on paper, the enhancement provided by the treaty undoubtedly improves the arrangements under the memorandum of understanding. First, the treaty includes an explicit obligation that no person sent to Rwanda will be removed to any other country, except back to the United Kingdom at its request. Secondly, a new system to process asylum claims will be established, with safeguards to ensure compliance with refugee law, including new institutional structures with international judges. Thirdly, the role of the independent monitoring committee is enhanced, with additional staff to support its functions. Fourthly, a binding mechanism to settle disputes between the parties is established. These are all important changes, and the committee acknowledges the efforts of both Governments to address the issues raised by the Supreme Court.

However, it is plain from the Government’s evidence to our inquiry, and from the background information in the Home Office policy statement, that much work needs to be done before the protections that the treaty envisages could be fully in effect. This includes not just the adoption of new laws, systems and processes but the recruitment and training of personnel.

All these legal and practical steps are set out in our report, but I will highlight just a few of the most important ones. The Home Office told our inquiry that it is still discussing with the Government of Rwanda key aspects of the new asylum processing system. The new Rwandan asylum law, which will underpin this important part of the treaty, will be adopted in the “coming months”, according to the Home Office policy statement. Additionally, the Home Office told us that the process for selecting the co-presidents of the appeal body is still being discussed between the UK and Rwanda. Only after that process has been agreed can the co-presidents be appointed. They, in turn, will need to identify and select the other international and Rwandan judges. The Home Office was unable to tell us how many international judges there would be in total, or how they would be allocated to individual appeals. It is clear that significantly more work is needed on this important aspect of the treaty.

The obligation not to remove asylum seekers to any other country, except if requested by the UK, is central to the Government’s contention that the treaty meets the concerns of the Supreme Court. The treaty provides an added assurance—although it could also be taken as a lack of confidence in compliance by Rwanda—in stating that the parties will co-operate to “agree an effective system” to ensure that refoulement does not take place. We asked the Home Office for further information about this but did not receive a clear answer on when this system would be in place or whether the measures would be published.

The Government also place heavy emphasis on enhanced monitoring arrangements, but, from information we received from the Home Office, it appears that the monitoring committee has yet to recruit its support team. This is important because the noble Lord, Lord Anderson of Ipswich, whom I see in his place, told us, based on his experience of reviewing similar monitoring processes in his previous role as Independent Reviewer of Terrorism Legislation, how resource-intensive effective monitoring is and how important it is to have people on the ground.

Another important new aspect of the monitoring arrangements provided for by the treaty is a process to allow asylum seekers or their representatives to submit confidential complaints, but this system has not yet been set up by the monitoring committee. It is also unclear whether the arrangements are to be subject to public scrutiny. In total, our report identifies at least 10 sets of issues in respect of which, on the basis of the Government’s evidence, significant additional legal and practical steps are needed in order to implement the protections the treaty is designed to provide.

The UNHCR published its assessment of the treaty last week. It also acknowledged that:

“Detailed, legally binding commitments set out in the treaty would, if enacted and fully implemented in practice, address some of the key deficiencies in the Rwandan asylum system identified by the Supreme Court”.


However, the UNHCR, in common with many witnesses to our inquiry, stressed that the changes in the treaty require sustained long-term efforts at capacity building which can only be assessed over time. The committee agreed with that assessment, which is why we concluded that the treaty is unlikely to change the position in Rwanda in the short to medium term.

On 19 December, when the Home Secretary came and gave evidence to us, he told us that he did not intend to “operationalise” the Rwanda relocation scheme until the Government are

“confident that the measures underpinning the treaty have been put in place, otherwise the treaty is not credible”.

The difficulty is that the Government have already presented a Bill to Parliament asking it to make a judgment that Rwanda is safe now. Yet, on the Home Secretary’s own evidence, it cannot be so, because the measures are not in place and have not been shown to be effective. The treaty is held up by the Government as the justification for the measures in the Bill, yet the treaty cannot at present provide a basis for Parliament to judge that Rwanda is safe while so many aspects of the treaty remain unimplemented and untested.

When the United Kingdom ratifies a treaty, the long-standing practice of government is to ensure that all necessary implementing measures are in place before the Government proceed to ratification. It is true that some of the required steps to implement the treaty need to be taken in Rwanda. However, it is clear from the information supplied to our inquiry that the Government are fully engaged with the Government of Rwanda in developing those implementing measures. The Government should therefore abide by their usual practice of satisfying Parliament that all measures are in place before ratifying. That is why the committee has recommended that ratification should not take place until certain conditions are met.

We consider that the Government should return to Parliament when they believe that the treaty is ready for implementation. They should then give Parliament a further opportunity for scrutiny of the treaty arrangements. Only at that point will Parliament be able to assess properly whether Rwanda is safe. The principle of the separation of powers provides a further reason for pausing. It would be constitutionally inappropriate for Parliament to seek through statute to overturn findings of fact by the Supreme Court; I underline findings of fact because that is what the Supreme Court did. It is therefore important for Parliament to be clear that the facts have indeed changed before making its assessment.

If the Government proceed to ratify the treaty immediately after the end of the CRaG scrutiny period, it could enter into force without being fully implemented, because the Government lose control of the timing of entering into force once it has been ratified. Yet, once the Bill is in force, the judgment that Rwanda is safe is a fait accompli, regardless of whether the treaty has been implemented or not.

Before I conclude, I thank all the witness who took the time and trouble to contribute evidence to our inquiry over Christmas and the new year. I thank all my colleagues on the International Agreements Committee, some of whom I am very happy to see in the Chamber, for their co-operation and support. I thank our officials and advisers for dealing with a substantial amount of material submitted in response to our call for evidence, including a very large amount of material submitted at a very late stage by the Home Office. Finally, I thank the Government for offering us such a prominent debate spot within the CRaG period.

The Section 20 Motion I have tabled in unusual—in fact, unprecedented. We are not saying that the treaty should never be ratified, but we are saying that Parliament should have the opportunity to scrutinise the treaty and its implementing measures in full before it makes a judgment about whether Rwanda is safe.

The Government propose in their Bill that the courts will be precluded from considering whether the Supreme Court’s concerns have been addressed, so it is now for Parliament alone to make that assessment. It is the unanimous view of the International Agreements Committee that we need first to see the protections fully implemented and working. For that reason, the committee concluded in its report that the treaty should not be ratified until the protections that it provides have been fully implemented. I beg to move.

--- Later in debate ---

[Lord Goldsmith (Lab)]

My Lords, I very much resent that last piece from the Minister. I presented this on the basis that it was the view not of the Labour Party but of the committee as a whole. I have tried to be completely unpolitical in what I have said, and it is a great shame that the Minister should choose to make that particular observation towards the end of his speech.

I thank all noble Lords who have participated in this debate, with so many powerful and insightful thoughts from your Lordships. There is not time to comment on them all, but I will touch on two questions. One is the powers of this House and the second is the question before us.

As to the powers of this House, there was some suggestion—I am afraid to say that to some extent it seemed to come out in the speeches of the noble Lords, Lord Sandhurst and Lord Wolfson, both of whom know that I very much admire and respect them—that there is something improper in asking this House to do what I am asking it to do today. It is clear that we do not have the power to delay or block the treaty, but we can pass a resolution, if we so agree, that it should not be ratified at the moment. That is all I have asked, and I will ask for a vote on that later but this is not the moment for that. It is not right to say that that is improper; the statute itself provides in Section 20 that we can pass that resolution, so it is not satisfactory at all for anyone to suggest that doing that is inappropriate. The House has one power, and that is all we are asking it to do.

I come back to the question, because it is important; I dealt with it in my opening remarks. One finds out the question that we were dealing with by looking at the foreword by the Home Secretary to the policy paper that he put forward. I repeat: “This work”—the work is the treaty and associated things—

“will enable Parliament to conclude that the Supreme Court’s judgment has been addressed and that Rwanda is safe for relocations under the Migration and Economic Development Partnership”.

I say to the noble Lord, Lord Howell of Guildford, who knows I very much respect him and appreciate the work he has done on the committee, that that is what safety means: safety from relocations under that partnership. That is what it means, that is what we were looking at and that is where we were unable to reach a conclusion.

The noble Lord, Lord Fox, and my noble friend Lord Coaker were right: the question is not whether there is a willingness to do this or whether the policy is right but whether the instruments are in place at the moment to achieve that result. I will make one slight amendment to that: the procedures to make this possible—the 10 points in paragraph 45—are not things that we thought up but are what the Government say are going to happen. All we are saying is that those things ought to be in place before the final statement is made by Parliament that the policy is safe. Once it is done, and once the Government ratify, that is the end. That is why it is important, in my submission, to follow what the committee decided unanimously—that the treaty should not be ratified until those things are in place.

Let me give one example. Emphasis was rightly placed on the principle of non-refoulement—the Minister referred to that. But he will recall, and the House will recall, that one of the ways in which that is supposed to be protected—it is set out in the treaty—is that an agreement will be reached between Rwanda and this country as to what the procedures are to effect it. It is not in place. As I said in my opening speech, we do not know when it will be in place, although we asked about it.

So I will now ask for the Question on the first Motion to be put and then we will come to the vote on the second Motion.

Motion agreed.

Rwanda: Asylum Arrangements Treaty

Lord Goldsmith Excerpts

Tuesday 21st November 2023 Lords Chamber

Asked by

[Lord Goldsmith]

To ask His Majesty’s Government what plans they have for ratification of the proposed asylum arrangements treaty with the government of Rwanda, as announced by the Prime Minister on 15 November; and whether they intend the treaty to be subject to scrutiny by Parliament for 21 days under the provisions of the Constitutional Reform and Governance Act 2010.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, the Government will lay a treaty before both Houses of Parliament in due course. This will enable Parliament to consider Rwanda as safe, in conjunction with new legislation announced by the Prime Minister. We will follow standard procedure as per the CRaG Act.

[Lord Goldsmith (Lab)]

I am grateful for that Answer and for the confirmation that this time, the treaty will be put through the CRaG process. That will mean that Parliament will be able to scrutinise the agreement and consider the relevant policy considerations, and indeed the financial implications, unlike the memorandum of understanding, which the International Agreements Committee of this House previously said was deeply concerning because that scrutiny was not available. Can the Minister also tell us when the CRaG notice will be given so that that process can start, and when the relevant Minister will come to the committee to give evidence?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not have that detail because the Bill has yet to be presented to Parliament. However, as I understand it, the timeframe is 21 days after laying, when both Houses are sitting, for the treaty process to take effect.

Domestic Abuse Bill

Lord Goldsmith Excerpts

Report stage
Monday 15th March 2021 Lords Chamber

[The Earl of Sandwich (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Hunt, who always speaks with great reason.

My meetings with the excellent charity Kalayaan during previous immigration Bills—which some here will remember—left me in no doubt about the exploitation of migrant domestic workers in London and elsewhere. We heard some chilling case studies of how their employers confined them, did not pay them and removed their passports, among other forms of flagrant abuse and exploitation, which continue today. Noble Lords will also remember that the strength of such stories led directly to the Modern Slavery Act.

I have not yet spoken on this Bill, but I speak now, more narrowly, as a member of the International Agreements Committee, like the noble Lord, Lord Lansley, to support Amendment 87, persuasively argued by the noble Baroness, Lady Helic, and Amendment 70, which also concerns migrant workers. As the noble Baroness, Lady Lister, said, the committee recently listened—with some surprise, I might say—to the Minister for Safeguarding proposing the pilot project to collect further evidence instead of ratifying the Istanbul convention. The Home Office problem is, as usual, that it cannot catch up with unregistered migrants. One can sympathise with that but, as was said, the procedure could take another 14 months at least. My noble friend Lord Kerr questioned her on this specifically, but the noble and learned Lord, Lord Goldsmith, will explain that we all thought the evidence was already running strongly in the other direction, and we were overwhelmingly in favour of the solution proposed originally by the End Violence Against Women Coalition, urging the Government to skip the pilot and adopt this amendment, which could then lead directly to ratification.

The relevant provisions of the convention relating to non-discrimination on the grounds of immigration status are Articles 3, 4 and 59. They say simply that all women, of whatever status, who are victims of domestic violence and abuse must be protected. Surely, delaying ratification any longer will seriously damage the UK’s international reputation. This message also comes from our Council of Europe delegation, which has already made its position clear. I support both these amendments.

[Lord Goldsmith (Lab) [V]]

My Lords, it is a pleasure to follow the noble Earl, Lord Sandwich, who spoke as a member of the International Agreements Committee—I am its chair—as did the noble Lord, Lord Lansley, and as will the noble Lord, Lord Kerr, when he follows me.

Reference has rightly been made to our inquiry into why the Government have not yet ratified the Istanbul convention, which is described by the Council of Europe as the gold standard for the protection of women against violence. That is why I speak in this debate. We had the benefit of the evidence of the Minister for Safeguarding, Victoria Atkins MP; I believe we were all impressed by her determination to push the work forward, but I am afraid we were less impressed by the reason why this ratification had not yet taken place. She identified three reasons, two of which are being dealt with. The third was the issue covered by the amendment which has been spoken to so powerfully by the noble Baroness, Lady Helic, and other noble Lords today.

We took the view as a committee, as noble Lords have heard from our letter—which I signed with the authority of the committee on 11 February 2021—that we were very concerned that the Minister could not give us assurances that the necessary measures would be implemented this year to ensure that ratification could take place promptly. Indeed, it appeared clear from the evidence that ratification might not take place until 2022 or 2023. I think it was in that context that the Minister suggested that a way to get to ratification earlier would be to enter a temporary reservation against certain provisions, particularly those under Articles 4(3) and 59. The committee did not welcome that at all, because its potential effect would be to leave these important provisions—including non-discrimination provisions—outstanding for even longer. In the committee’s view, that would be bad both in terms of the lack of protection for women covered by those provisions and for the reputational standing of the United Kingdom in this important area.

While I think the Minister, whom I commend on her frankness and candour, was trying to help in one sense by suggesting this reservation, it was not an answer to the problem. In the letter I have referred to, we said that what is in effect Amendment 87 would solve the problem and enable a much speedier ratification. She said she hoped the committee would recognise the direction of travel; I hope the Minister here today will recognise that the travel has now arrived at your Lordships’ House with this amendment. It is time to vote for it, as I will gladly do if it is put to a vote, and bring that obstacle to ratifying the convention to an end.

[The Deputy Speaker (Lord Alderdice) (LD)]

The noble Lord, Lord Kerr of Kinlochard, has withdrawn, so I call the noble Lord, Lord Griffiths of Burry Port.

Counter-Terrorism and Security Bill

Lord Goldsmith Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, this debate would be important whenever it was taking place. However, the unspeakable barbarity of what took place in Paris last week gives this added impetus. Noble Lords who have spoken and will speak today do so from great experience. I count at least two former Security Ministers—maybe there are more—police officers and, I think, two former heads of one of our security services. We look forward very much to hearing what the noble Lord, Lord Evans of Weardale, will say in his maiden speech.

My experience includes being in government at the time of 9/11 and having to work with others—including my noble friend Lord Rooker, who sits next to me—on how to deal with that threat, and what needs there were for legislation. The noble and learned Lord, Lord Lloyd of Berwick, has already referred—disparagingly, it has to be said, but I understand why—to some of the legislation that we passed. Having mentioned his name, I pay tribute to the commitment that he has shown to this question. I have not always agreed with him. I am not sure that I agree with him on all that he has said today. He has, however, always asked important questions, and I am as alarmed as many other noble Lords to have heard the noble and learned Lord talk about this perhaps being his swansong. I hope that that is not the case; if it is, we will all regret it but treasure what he has said today.

In the time that I spent on legislation, I was involved in supervising the prosecution of terrorists and looking at the Prevent strategy, to which the noble Lord, Lord Jopling, referred. I learnt five things from that. The first was that these are such difficult questions. There is nothing absolute about any of them except, I hope, our abhorrence of terrorism. They raise extremely difficult issues, which need to be considered carefully.

Secondly, we have to listen very carefully to the advice from the police and security services. I was concerned and unhappy, during an earlier debate, about whether the advice that we were getting from the police about the desirability of detaining terrorist suspects for extended periods was justified. If anything, that 90-day debate may have given the security services and the police a particular inhibition about putting forward recommendations and advice on terrorism legislation. That may be healthy but we need to listen very carefully to what they say, because they know what is taking place on the ground in a way that is difficult for us to know.

Thirdly, we have to test what they say by reference to evidence, to logic and to whether it can be shown that what is proposed is proportionate and necessary in all the circumstances. Fourthly, one of the things that we as parliamentarians need to do is not just scrutinise evidence and what is put forward, but consider what the safeguards are to protect us and the things that we care about. Fifthly, it is so easy for politicians to use these circumstances for political purposes. Like my noble friend Lady Smith, I was alarmed to hear the remarks today about snoopers’ charters. I worry that these are references to something in the light of the coming election and a need to see a differentiation between the junior and senior partners in the coalition. I hope that that is wrong and that it will not affect the debate in this House today in any way. I also hope that the debate in the country is not affected by that.

What about the substantive points? I want to make three. First, there is the question of process and fast tracking. I declare an interest as a member of your Lordships’ Constitution Committee. We produced a quick report—it had to be quick because the Bill came to us quickly from the Commons—that picked up on the fast-tracking question to which the noble and learned Lord, Lord Lloyd of Berwick, referred. I draw the attention of noble Lords to two significant points in what we said. One is that we welcomed the fact that the Explanatory Notes set out detailed reasons for fast tracking, if that is what it is—there is still some confusion on whether the Government think they are fast tracking this but it is plainly going through a fast process. However, we also respectfully encouraged this House to consider carefully whether the reasons put forward by the Government for the fast tracking of each element of the Bill offered sufficient justification.

It is important to look at each element of the Bill. It is relatively easy to see that with people potentially returning from theatres of operation, battlefields or terrorist operations in the Middle East, we need to do something now about whether they can return and under what conditions, but less easy to see why the proposed changes in relation to data retention have to be dealt with at this point, given that we touched on this in the previous legislation. At that stage, it was said that because it was being fast tracked, it was not possible to deal with the substance. Each element needs to be looked at. I, and no doubt others, will carefully consider what the Government and the Minister have to say about those elements as we go through.

The second substantive point is on the question of temporary exclusion orders. This seems to be the most controversial element in the Bill. The noble Baroness, Lady Hamwee, may be right that this sort of order has not been used since the medieval ages when our kings used to banish people—it was then, I think, for political reasons rather than for protection from terrorism. However, it is a very large power to ban somebody from his home country. The arguments put forward have persuaded the independent reviewer. In my judgment I can see the force of the arguments, but that is why it is so critically important to consider the safeguards in relation to them.

Reference to judicial intervention has already been made and I should like to spend a moment or two on the reasons why it matters. First, I understand that the Government accept that the only judicial safeguard under the Bill as it stands would be judicial review of the decision of the Secretary of State to exclude somebody. Judicial review is hugely important. It is a very valuable tool, and important for the protection of all our liberties, but it is an imperfect tool. In this context, it is particularly imperfect. Judicial review is not generally a reconsideration of the evidence de novo. It is not an original decision; it is not even an appeal. It looks at whether there are defects in the decision-making process: was some irrelevant consideration taken into account or some relevant consideration not taken into account? It is very difficult to deal with in this sort of area. However, it is not a review of the merits of the decision, so it is a limited consideration.

The second problem, inevitable in the circumstances we are talking about, is that that judicial review would have to be brought from overseas. As I understand it—I am sure that the Minister will deal with this—the individual affected by an exclusion order would not be allowed back into the country to make the application. So the difficulties would be compounded by the applicant coming from overseas, wherever that might be, and finding legal assistance to ensure that the application was made.

Thirdly, there is a surprising contrast with the TPIM regime, where there is a judicial intervention which does not exist under the Bill as put forward. That needs to be justified, given that the order excluding someone from this country is every bit as serious, if not more so, than some of the measures that could happen under TPIM.

Fourthly, I wonder whether this is not in the interests of the Government or of the Minister. The concern for any Minister in dealing with a potential exclusion order is that they are told by the police or by the security services that someone is a potential risk. What happens if that person turns into an actual risk and the Minister has not excluded them? It is the day after a terrorist attack that fingers are pointed—inevitably and perhaps rightly so. The Minister is therefore put under great pressure and temptation to look at the evidence in a benevolent way. That would not be what a court did in those circumstances; it would need to look dispassionately and independently, as our judges are trained to do.

I understand why the Executive might be nervous about leaving these decisions to judges, but they would be wrong to be so. Our judges can be trusted to make these decisions. It was, therefore, good to hear what the Minister repeated about the Government’s intention but we shall see the reality when the Government put forward their proposals. I know that there are lots of different gradients of judicial intervention and supervision; we want to see what the Government propose.

My final substantive point is on data retention; I have already touched on it. I am not one of those people who are so concerned about privacy as not to see that where there are advantages to the security services, it must be overridden. I would love to see a situation in which all our privacy was guaranteed, just as I would love to see a situation in which we did not have to take our shoes off—or have all the other security measures—when we travel by air. Those have necessarily been caused by what the terrorists have done. There must be safeguards. People must be satisfied that information will not be misused but, at the end of the day, if the security services and the police are of the view that they need this material—and I know why they think they do—then that is a power which we need to give them.

Crime and Courts Bill [HL]

Lord Goldsmith Excerpts

Tuesday 18th December 2012 Lords Chamber

Moved by

[Lord Goldsmith]

11: Schedule 16, page 273, line 36, leave out “broadly comparable to” and insert “not more than”

[Lord Goldsmith]

My Lords, this amendment can be dealt with briefly, and I would have said that before the Chief Whip made her statement. It concerns the question of the extent of the discretion that prosecutors will have, subject to the double lock of supervision by the courts, in reaching agreements on deferred prosecution agreements. Along with other noble Lords, including the noble Lord, Lord Marks of Henley-on-Thames, I have been concerned that the Bill does not appear to provide a discretion on the maximum reduction of financial penalty. For example, on 10 December at col. 968 the noble Lord, Lord Ahmad of Wimbledon, talked about a maximum discount of one-third, and it was not the first time that that had been said. That led me to consider whether that was the view of the prosecutors, and having made inquiries of them, it turns out that that is not what they thought the Bill was going to do. It was because of that, and only because of that, that I wanted to raise the matter again for clarification.

I wrote to the noble Lord, Lord McNally, and I am grateful to him and to his officials for his detailed response. What I asked in substance was whether it was in fact the case that one-third was not the maximum discount on the financial penalty that could be agreed; it could be greater than that. I understand from the Minister’s response that, shortly put, the one-third discount is not the maximum that can be agreed and that in appropriate cases, there could be an agreement—I underline, subject to the agreement of the court—which could be greater than that. If that clarification can be made, which otherwise would go uncorrected, although I personally would still prefer to see a greater discretion, at least it would deal with the major problem of an apparent one-third maximum reduction. For those reasons, I beg to move.

[Lord Beecham]

My Lords, I support the amendment moved by my noble and learned friend, although I do not anticipate that he will seek to divide the House on it. It is interesting to note that the amendment has come before the House on the same day as a question from the noble Baroness, Lady Williams of Crosby, that referred, of course, to the settlement of cases in America. She referred to a billion-pound settlement reached under a deferred prosecution agreement over there and contrasted that with the very modest levels of financial penalty incurred in this country under processes that usually involve the Serious Fraud Office or, in revenue cases, Her Majesty’s Revenue and Customs.

Throughout our debates on deferred prosecution agreements, my noble and learned friend has pointed to the need to incentivise potential corporate defendants. At the moment they are only corporate defendants, but in due course there may be a case for extending them to individual defendants. He has stressed the need to adopt this procedure rather than rely on prosecution because, as has been pointed out on several occasions, the success rate of the Serious Fraud Office in these cases has been, to put it mildly, not very marked. Unless there is a credible threat of a successful prosecution, there is virtually no incentive for a defendant corporation to plead guilty and every incentive for it to contest the case. The corporation has a very reasonable prospect of being successful. The case would seem to be similar in revenue cases, hitherto at any rate. HMRC has been apt to settle for rather more modest amounts than one might have expected relative to the level of abuse that is alleged to have taken place. The advantage of the agreements, as has been pointed out by my noble and learned friend and several other noble Lords, is not only that there is a financial penalty available as part of the agreement, but that other measures are available as well.

An additional reason for the Government, through their relevant agencies, to press for a deferred prosecution agreement is because, first, there is a greater incentive for companies to settle, knowing that they will not have to meet the full costs which they can take into account in balancing their considerations about whether to defend or not, and secondly, from the public interest perspective, there can be additional conditions that might apply to such an agreement. Those might be monitoring, changes in practice and so on. Furthermore, there can be a period during which matters can be reviewed. All of this suggests that greater flexibility in discounting from what might be expected to be the maximum fine would assist the whole process, although that does raise the question of what the sentencing guidelines from the Sentencing Council will be with regard to these penalties. Perhaps we ought to be moving more in the direction of the level of fines imposed under the American system, which it is hoped would increase the incentives.

My noble and learned friend is clearly minded to accept the position on the basis of the Minister’s letter. From the Opposition’s perspective, we are content with that, and we look forward to seeing in due course how the system moves forward. We would hope also to have an opportunity to review it, as has been discussed in previous debates. I commend my noble and learned friend on his persistence in this matter and the Minister on what has apparently been a sympathetic response.

[Lord Ahmad of Wimbledon]

My Lords, it is always a pleasure to respond to the noble and learned Lord, Lord Goldsmith, at a rather earlier hour than has been the case in our previous exchanges, and that is always welcome. However, perhaps it is later than I thought would be the case.

Following the debate on Report, I know that my noble friend Lord McNally has corresponded with the noble and learned Lord and reassured him that paragraph 5(4) of Schedule 16 affords a broad discretion to prosecutors and the court when considering a financial penalty term for a deferred prosecution agreement. In particular, on the specific point raised by the noble and learned Lord, my noble friend Lord McNally has confirmed in his letter that the extent of the discretion is such that scope to reduce financial penalty will not be restricted to a maximum of one-third in all cases.

It is appropriate that the noble and learned Lord, Lord Goldsmith, has pointed to the additional discounts in the sentence available for convicted offenders under Section 73 of the Serious Organised Crime and Police Act 2005, which was predated by more informal arrangements. It is our view that in a suitable case the parties to a DPA and the court could consider whether this further discount might be available. The level of any such additional discount would depend on the circumstances and of course reflect the level of assistance given; and the parties should be guided by sentencing practice and pre-existing case law on this matter.

In the light of these assurances and the correspondence that has taken place, and, of course, the related assurances that I have given, I trust that the noble and learned Lord, Lord Goldsmith, will withdraw his amendment.

[Lord Goldsmith]

My Lords, I thank the noble Lord, Lord Beecham, for what he said and for reminding us and the Government that we are going to come back to review these arrangements, we very much hope, for a number of reasons, including this one. My primary concern was to get an assurance that one-third was not the maximum discount that could be agreed. In the light of that assurance, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Protection of Freedoms Bill

Lord Goldsmith Excerpts

Tuesday 29th November 2011 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, I would like to be able to answer the noble Lord but I regret that I cannot. I will come back to him in writing.

The statistics and the lack of evidence for the Government’s proposals mean that Amendment 1 is essential.

I turn to Amendments 7 and 8, in my name and those of my noble friends Lord Tunnicliffe and Lord Rosser. Persons arrested for or charged with a qualifying serious offence should have their DNA and fingerprints stored for six years. This replicates the provisions of the Crime and Security Act 2010, which was passed by Parliament but never brought into force. The six-year limit is based on Home Office analysis and reflects a proportionate response to the ECHR decision. As I mentioned earlier, the three-year figure comes from the Scottish model, which was based on no analysis of risk to public security. That is why Amendments 2 and 3 are essential. They will ensure a six-year rather than a three-year limit for the retention of DNA and fingerprints. I beg to move.

[Lord Goldsmith]

My Lords, I strongly support the amendment moved by my noble friend. As noble Lords will know, I have some experience in dealing with crime from the years when I held office in government. Two things became very clear during that period. The first was the enormous value of DNA in solving serious crime. Time and time again, cases came before me involving DNA, including a number of cases that came from the so-called cold cases review, which involved investigating crimes from a number of years before. There were some remarkable discoveries—for example, the so-called Sheffield shoe rapist who was discovered, some 20 years after he had committed, I think, four rapes, two attempted rapes and probably many more, as a result of a match to DNA from his sister who had been arrested, I think, for a driving offence. That would never have come to light but for the cold cases review and if that DNA had not been retained. It is not simply a case of bringing those who deserve it to justice; it is also a question of protecting others from that person. Those who have been convicted, particularly of such serious offences, as a result of DNA are at least off the streets and therefore less likely to cause harm to women, in particular. That is the second point I want to underline.

My noble friend rightly made the point that there is no more important series of cases for DNA evidence than serious sexual crimes, rape and other offences against women. That is the second thing that I discovered in my time. These are difficult cases to deal with and to convict on, but they cause huge anxiety, shame and sorrow. The great tragedy is when they do not result in a satisfactory result. I am therefore extremely worried about the Government’s proposal to remove without a proper evidential base evidence that could be used in just such cases. In the light of what my noble friend said, this change should not take place until and unless there is clear, convincing evidence that it is not going to put more people at risk or leave more criminals on the streets. For that reason, I strongly support this amendment and the other two amendments in this group.

[Lord Campbell-Savours]

I want briefly to intervene because I feel quite strongly about this subject. I am not a lawyer, but I think I have my finger on the pulse of the people who were my constituents in Workington. The criminal justice system, even under my own Government, was often felt to be completely out of control in the sense that, as far as many people on the street are concerned, the legal system simply does not work in the United Kingdom. There is a total disconnect between the people who stand behind this initiative and the wider public in the United Kingdom. If you were to do an honest poll of people on the streets of Britain, not a poll simply of libertarian opinion, and ask them their view of DNA and its retention, particularly in the context of their lack of confidence in the criminal justice system, you would find overwhelming support for the retention of this material.

The Government have got the balance wrong. They have taken the libertarian position too far and, in the event that this becomes law, they are going to end up with a number of cases surfacing in the national media, particularly in the tabloids, that reveal that people had committed offences and had not been tracked down simply because DNA had not been retained as a result of this legislation. I object very strongly because I believe that the Government are making a major mistake.

From a Conservative position, the Government would do well to look among their own supporters. Among many of the Conservatives who I know and mix with, there is overwhelming support for DNA retention. Many Conservative supporters simply do not understand why the Government are going down this route. I do not know whether they are being driven by the libertarian agenda that is being pushed by the Liberal Democrats in the coalition—they may well be—but if they are, they should take stock of what they are doing because they are making a mistake and they are upsetting their own supporters, who feel as strongly as I do. The Minister will mix with people in the county of Cumbria, where he lives. If he discusses this with his colleagues in the county of Cumbria, he will find the same view: that we should retain this material as it is a way of safeguarding the future of the criminal justice system and making it more operationally effective.

Finally, this is only one of a number of initiatives that the Government are taking in this Bill. They are introducing what some believe to be a more liberal regime in the use of cameras and CCTV. Again, the public support those cameras. I understand that the Government were involved in a consultation exercise earlier this year. I have not seen the result of that consultation exercise, but what interests me is who was consulted. Was it the people on the street, who have strong attitudes on these matters and who invariably fail to respond to consultations, or was it again this libertarian opinion, which worries me when it manages to secure changes in legislation in the form that we see today?

Let me just say where I stand on DNA. I believe that there should be a national DNA bank, established initially on a voluntary basis, whereby we no longer stigmatise the retention of DNA. I believe that millions of people would provide their DNA if only to prove that that is the route we should be going down. Only at the end of a process of introducing voluntary DNA will we be prepared at some stage in the future to take the necessary initiative to store all people’s DNA compulsorily—but let us start with a voluntary basis. There might be some entrepreneur who is prepared to fund that kind of approach to the retention of DNA, but it is only by taking away the stigma that we release ourselves from the arguments that have led to this legislative change that we are confronted with today.

--- Later in debate ---

[Lord Goldsmith]

Perhaps I may make some observations on the amendment that are very much in the nature of trying to understand what it is intended to do, and I am sorry if I have misunderstood it.

As I read the Bill, there are two circumstances in which material that has been taken in relation to a person who has been detained under Schedule 7 may be retained. In one case, it is retained indefinitely in circumstances where that person has previously been convicted of a recordable offence, other than a single exempt conviction, or is so convicted before the end of a further period. Therefore, if a person has been convicted previously of a recordable offence, DNA or material taken under Schedule 7 may be retained indefinitely. There is a second circumstance in which the material can be retained for six months, which is where the person has no previous convictions or only a single exempt conviction.

I regret that I do not understand at the moment what the noble Baroness’s amendment would do. It would add the words,

“and subsequently arrested for an offence directly related to the reasons for detention”.

For example, if this was the case as regards a person who had previously been convicted of a recordable offence, one would somehow have to wait to see whether that person was subsequently arrested—and I do not know within what period that would apply—for an offence that would also have to qualify as being directly related to the reasons for detention. Only in those circumstances could the material be retained. I do not understand how anyone will know at any point whether that person is going to be subsequently arrested. Nor do I understand why they should be,

“arrested for an offence directly related to the reasons for detention”.

I have to some extent demonstrated my colours in relation to DNA but, at least in the case of a person who has previously been convicted of a recordable offence, I see no reason at all why the material should not be retained. I do not see why one should add a condition whereby somehow you are going to be able to discover subsequently that a person would be arrested for an offence and, furthermore, that that offence is directly related to the reasons for the original detention—whatever, with respect, that means.

At the moment, I do not understand the amendment and, for those reasons, I could not support it.

[Lord Henley]

My Lords, I do not know whether I can bring light to the noble and learned Lord, Lord Goldsmith, but I will see what I can manage. I will speak to my noble friend’s amendments and, because they have been grouped together, in due course speak to the government amendments in my name—Amendments 24 to 37.

My noble friend helpfully set out her views on the provisions in Schedule 1 in respect of the retention of material taken as a result of a Schedule 7 examination. Schedule 7 to the Terrorism Act 2000 is a national security border power that enables examining officers to stop, search and question a person at a port or in a border area to determine whether they are someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism, without reasonable suspicion that they are so concerned. Given that most major terrorist plots have involved individuals travelling across international borders to plan and prepare their attacks, it is only right that the police are given appropriate powers to examine persons, including through the taking and retention of biometric material—in this context, in order to identify and disrupt such individuals.

Imposing a requirement to arrest an individual for terrorism offences as a condition for retention and use of material taken under these powers, would fundamentally undermine their use as a means to identify those involved in terrorist activity and to gather intelligence. Such intelligence can provide vital contributions towards wider intelligence-based investigations in respect of national security. Terrorism investigations are, by their very nature, long and complex, and at the end of a Schedule 7 examination it may not be immediately apparent that an arrest is appropriate.

Attaching a requirement for arrest would furthermore offer no additional safeguards. The Bill already provides safeguards for material taken from a person detained under Schedule 7. There is a defined retention period of six months, which is considerably shorter than the three years’ retention period that applies where a person has been arrested for a terrorist offence under Section 41 of the 2000 Act. The new biometric commissioner will also have a general oversight role in respect of the retention and use of biometric material taken under Schedule 7.

I hope that that helps partially to explain matters to the noble and learned Lord and reassures my noble friend that the provisions in the Bill are transparent and will provide strong protection against unnecessary retention of material taken from individuals detained under Schedule 7 to the 2000 Act.

Turning now to the governance arrangements for the DNA databases, the subject of Amendment 41, I think it is important to note that all DNA material retained by the police will as a result of the Bill be subject to comprehensive regulation, irrespective of the databases on which it is held. Indeed, although the overwhelming majority of DNA information retained by the police will continue to be held on the National DNA Database, where this is not the case, such material will be subject to the requirements of the regimes set out in the Bill, and covered by all the relevant safeguards.

Regarding the counterterrorism database, only DNA profiles obtained by the police in relation to national security—including counterterrorism investigations—will be held on the database. It has already, in effect, been placed on a statutory footing by virtue of the Counter-Terrorism Act 2008, which provides for all material not otherwise subject to statutory restriction, and is already overseen by the National DNA Strategy Board in respect of compliance with agreed national standards and protocols.

The Forensic Science Regulator is also closely involved in ensuring that DNA analysis and validation meet acceptable standards, as he is with the National DNA Database. In addition, we should not forget the new biometrics commissioner’s general oversight function under Clause 20. If the commissioner had concerns about the governance arrangements, I am confident that he or she would not be reticent in bringing such concerns to the attention of the Home Secretary.

Perhaps I may briefly address the government amendments, starting with Amendments 24 to 28. These address three separate matters. First, Amendments 24 to 28 to Part 3 of Schedule 1 are intended to clarify the application and scope of the provisions for the retention and destruction of biometric material to which Section 18 of the Counter-Terrorism Act 2008 applies. Section 18 mostly covers biometric material acquired covertly and material supplied by overseas authorities.

The Government are clear that material obtained under Section 18 of the 2008 Act should be subject to a clear and robust regime for the destruction and retention of such material. As such, we have proposed limiting retention to three years—on the basis of a national security determination extendable for renewable two-year periods—after which it must be destroyed.

However, the proposed destruction requirements in Section 18 are not expressly limited to material obtained from known persons. We are concerned that this will lead to anonymous material and, in particular, material taken from crime scenes, having to be destroyed at the three-year point. Indeed, as currently drafted the Bill requires just that. This unintended consequence would result in the destruction of material before the police were able to identify the individual to whom it belonged, complete an investigation of an offence—potentially compromising prosecutions in the process—or make a case for its retention on national security grounds. For these reasons, the amendments are designed to prevent the automatic and premature destruction after three years of anonymous and unidentified crime scene material obtained by the police.

We do not consider that anonymous material or material taken from a crime scene—where it is also anonymous—should be subject to the same destruction requirements as material obtained from known individuals. Rather, it should still be possible for the police and other law enforcement authorities to retain such material indefinitely. However, we recognise that not all crime scene material will be anonymous in nature and as such want to make clear that where there is provision for indefinite retention of unidentified material, once identified, such material will be subject to the same retention and destruction requirements of material where the identity of its owner is known on acquisition.

Amendment 26 will exclude from Section 18 of the Counter-Terrorism Act material taken under the Terrorism Prevention and Investigation Measures Act 2011, as it will become shortly. This is consistent with the exclusion of other existing statutory regimes from the scope of Section 18 to avoid enacting overlapping and conflicting provisions. We consider that all these amendments enhance the provisions in Schedule 1 by making clear how they are intended to operate.

Amendment 29 would omit paragraphs 6(4) and 7 from Schedule 1 to the Bill. Those paragraphs, which contain provisions in respect of the retention and use of biometric material in Scotland for national security purposes have, in effect, been made redundant by the Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011, which itself gave effect to the changes that those provisions would have made. Simply put, the provisions are no longer needed and can therefore be removed from the Bill. There are three consequential amendments to Clause 113 and Schedule 10 which we will need to come back to later in the passage of the Bill.

Finally, Amendments 30 to 37 to Parts 7 and 8 of Schedule 1 extend the list of purposes to which material taken under the Police and Criminal Evidence (Northern Ireland) Order 1989 and held pursuant to a national security determination may be used. They further ensure that the order-making powers conferred on the Secretary of State to amend the Police and Criminal Evidence (Northern Ireland) Order applies in respect of provisions regarding a transferred matter where it is ancillary to an excepted or reserved matter.

Amendments 30 to 33 provide that the purposes for which material retained pursuant to a national security determination which was taken under the Police and Criminal Evidence (Northern Ireland) Order may be used are the same as for the rest of the UK. That is, that such material can be used for the prevention and detection of crime, the investigation of an offence or for identification purposes, in addition to that for national security and terrorist investigations.

Amendments 34 to 37 are technical amendments. They amend the Secretary of State’s order-making powers so that the Secretary of State is able to make provision in respect of transferred matters where such provision is ancillary to excepted or reserved matters.

I apologise for taking so much time on those government amendments, but I hope that my noble friend will be content with the explanation I have given of her Amendments 41 and 23. I hope that she will feel able to withdraw her amendment, and I will move mine in their proper place.

Police Reform and Social Responsibility Bill

Lord Goldsmith Excerpts

Wednesday 14th September 2011 Lords Chamber

[Baroness Hamwee]

I thought that I had actually explained about decoupling them and I do not want to try the patience of the House by going over the whole thing again. Separate issues have been raised. We would have the same problem with May 2013 because there are county elections then. Other arguments have been made about November and I am not necessarily following them. This is a very particular argument.

I remain intensely concerned that candidates may stand on a simplistic platform of an officer on every street corner. I do not know whether that was in my noble friend's manifesto. It was a very telling manifesto. She left out of her critique of it that probably every crime has a victim: there is no victimless crime.

The issue of additional cost has been raised. To put it at its bluntest, we could probably wipe out the national deficit if we wiped out democracy.

It is a great pity that the opportunity has not been taken to defer the rearrangement in London to beyond the Olympics, because that will be a diversion.

With regard to the proposal for postponement until after a royal commission, there is of course a need for a continuing debate; but however straight the noble Lord’s face is—and he is very good at keeping a straight face—we all know how disingenuous this is. I have been among those who have used an argument for a review when it is really a euphemism for delay, which amounts to opposition. I agree with him of course on pre-legislative scrutiny, but we are rather beyond that on this Bill sadly.

Finally, with regard to amendments from the noble Lord, Lord Harris of Haringey, he knows that I have agreed with an enormous amount of what he has said about propriety and governance throughout the debates on this Bill. I am not sure whether four non-executive members is the right number or not; I am sure that I agree with him that it is those individuals who need that support who may be the least likely to want it. He talks in this amendment of a code of practice requiring something more than can be contained in his amendment. I trust—and I hope the Minister can respond to this—that the Government will consult on the code, and not just lay it before Parliament in its finished form. I think that the noble Lord has raised important points, but they have not quite worked in this form. We are at a point when we have to take a decision on what is before us, not something as we would like it to be.

I have to say to the House that I really did not expect to find myself in this position today. I have resisted so many blandishments for so long; but, as I said to my own party group about three hours ago, I persuaded myself overnight, given what we have before us to determine today. The basis of the decision, and the underlying proposals, may not be ones that I am hugely enthusiastic about, but we have to take a decision on what is before us today, and I can now see what my decision needs to be.

[Lord Goldsmith]

Before the noble Baroness sits down, I wonder if she can help me. I am somewhat confused by what she has said. I had understood from many of her remarks that she was very sympathetic to the points made by her noble friend Lady Harris of Richmond and that she found force in them, but ultimately was not happy because, in the end, not enough people supported other amendments proposed by the noble Baroness to make her proposal workable. We all know and respect the noble Baroness, Lady Harris of Richmond, very much indeed, and she has huge experience. She has described this Bill as defective and dangerous, and something which will cause lasting damage to our policing. Does the noble Baroness, Lady Hamwee, agree with that assessment, and if so, what does she propose that we do about it?

[Baroness Hamwee]

My Lords, I hoped that I had made clear that it would not be to the benefit of our communities to seek to pass legislation today which does not have what I described as the “supporting infrastructure”. The debate will not finish today. Of course, hugely important points have arisen in minds which might not have addressed them at all until the August disturbances. Those debates have got to continue. I wish I thought that legislation was the answer to everything. I am afraid that I do not. It is the way it is done, and the way that we all conduct ourselves, that matters—the way in which this legislation is implemented, not just the words on paper. I have criticised every Government who I have had anything to do with since I have been in this House for thinking and saying that the latest Bill was going to be the panacea.

Police Reform and Social Responsibility Bill

Lord Goldsmith Excerpts

Thursday 16th June 2011 Lords Chamber

[Lord Thomas of Gresford]

I shall speak to the amendment in the names of my noble friend Lord Macdonald of River Glaven, who cannot be here this evening, and myself. From the position of practitioners with hands-on experience of the criminal courts throughout our legal careers, we believe that the existing system works perfectly adequately. I concur with the views that have already been expressed in that way. Few applications are made and, of those that are, most are rejected by the magistrate who is the highly experienced person. Why then is there a need to move away from the current position? We are told that it is because there are people who feel that if they come to this country they may be subject to a private prosecution and to arrest.

Those who feel that way in foreign countries simply do not understand the practice and procedure of our courts. It is strange to amend our law not because of a real problem but because there are people abroad who believe that a problem exists when it does not. We are moving from the position that if the Government want to introduce the question of the consent of the Director of Public Prosecutions, it should be made equally clear at the same time that the tests to be applied are those which would be applied in an ordinary criminal case in this country. No special tests will be needed for those from abroad and who face allegations of offences of universal jurisdiction.

We feel that the tests that are to be applied are those of the existing discretions of the Director of Public Prosecutions. I have been approached today by my noble friend Lord Carlile in his usual genial and understated way to point out that the tests applied by the DPP are in fact subject to change. The guidance has changed in some ways. My noble friend tells me that we are now on the seventh version of guidance issued to public prosecutors. If that is the case, it is perfectly simple to redraft on Report the amendment that we have put forward so that we put in a broader way that the same tests which apply to citizens of this country will also apply in the case of people who come to this country.

But there is a difference with private prosecutions. Let me say that no practising criminal lawyer has any time for private prosecutions. They generally fail, and generally they cause great harm and trouble to people. We feel that prosecution should be in the hands of people charged with those duties; namely, the Director of Public Prosecutions and the Crown Prosecution Service, which acts under the director. The distinction is that the arrest warrant in a private prosecution leads to trial. When the police arrest someone, there is an arrest, and then there is a consideration of evidence that is obtained between arrest and charge. The charge is brought on the advice of the CPS only where there is sufficient evidence for the case to go forward. At that intermediate stage, the charge does not exist in private prosecutions, and therefore the issuing of an arrest warrant leads, as I have said, straight to trial. We believe that safeguards are needed.

We start from the basis that there is no need to amend the existing position.

[Lord Goldsmith]

I wonder if the noble Lord could help me on one point. As an experienced criminal practitioner, as he rightly describes himself, he is well aware that there are two elements in the code for Crown prosecutors. One is the test as to the adequacy of the evidence and the second is the public interest. Both have to be satisfied before a prosecution takes place. I note that in the amendment tabled in his name and that of the noble Lord, Lord Macdonald of River Glaven, there are two parts to this test. One part of the test, in proposed new subsection (4AA)(a), applies when there is enough evidence to be satisfied that there is a realistic prospect, so in that case there needs to be a consideration of the public interest. In the second test, in proposed new paragraph (b), which is where there is not enough evidence, there is no reference to the public interest at all. That is probably the most likely situation—that there is not enough evidence at that stage to know if there is a realistic prospect—so why does the public interest not come into his amendment at all, even though he has been addressing it on the basis that it is to replicate the current system, which requires the public interest to be considered?

[Lord Thomas of Gresford]

The noble and learned Lord makes a very valid point and I accept that of course it is intended that the public interest test should apply in the second of the two instances as well, although it is not stated in the amendment. As the noble Lord said, we are seeking a solution that will ameliorate the decision of the Government to make it an essential prerequisite for the commencement of a private prosecution that the director consents. We simply seek to make it absolutely clear that the director will not apply a different test to people who come to this country. I hope that that answers the noble and learned Lord.

[Lord Goldsmith]

Does the noble Lord agree that in those circumstances it would be wrong for the House to accept the amendment as it is put forward?

[Lord Thomas of Gresford]

I do not propose to ask the House to agree to this amendment tonight. This is the Committee stage. We shall consider the issue further. As I have already said, the criticisms so gently advanced to me by my noble friend have led me to believe that we might consider how to rephrase it in a way that would be more acceptable to the House.

--- Later in debate ---

[Lord Pannick]

My understanding is that consent is required. In any event, with great respect, I do not see the practical difference. Other noble Lords will assist the Committee in that respect.

[Lord Goldsmith]

My Lords, this is a delicate and sensitive matter and I will spend a few moments on it. I entirely understand why noble Lords who have spoken have raised the points that they have. There are some footnotes as well, but two major things emerge from the debate so far. First, it is interesting that, despite the fact that certain noble Lords have said, “Let’s leave the system exactly as it is, there’s nothing wrong with it”, everybody who has spoken so far has proposed a change to the present system, either by supporting the Government or by tabling amendments as the noble Lord, Lord Campbell-Savours, has done—

[Baroness Tonge]

Can the noble and learned Lord please clarify that? The amendments are to Clause 154, which I thought was a new provision to change the existing arrangements for the application for arrest warrants.

[Lord Goldsmith]

I am grateful to the noble Baroness. I will make my second point, about what the existing system is. With respect, there is a misunderstanding among some of the Committee as to what the existing system is. In a moment, I will take the opportunity to say something about that on the basis of my experience, particularly from when I was Her Majesty’s Attorney-General.

First, in fundamental agreement with my noble friend Lord Campbell-Savours, the principle of universal jurisdiction is extremely important. I strongly support that principle. I was a Back-Bencher on the Labour Benches led by the noble and learned Lord, Lord Archer of Sandwell, who pushed the Government into passing an effective form of the International Criminal Court Act 2001, which meant that we could prosecute people who were not permanently established here. I was the Attorney-General who consented to the prosecution of Zardad the Afghan warlord; I actually led for the prosecution in that case. As the noble Baroness, Lady D’Souza, said, he was convicted, by a British jury, of hostage taking and torture. He was sentenced to 20 years, which he is still serving.

Just so that noble Lords do not think that my favouring of universal jurisdiction is limited to particular countries, I mention Israel. I publically indicated that I was going to call for the extradition of an Israeli solider when I was concerned that the Israeli authorities were not properly investigating and dealing with an allegation that a British citizen, James Miller, had been killed in Gaza by Israeli fire. I did not do that because I was being pushed by some group. I went and talked to the Israeli investigators, looked at their files, cross-examined them, and called for the Metropolitan Police to carry out its own investigations into evidence which the Israelis said demonstrated that it was not Israeli gunfire, but which demonstrated that it almost certainly was.

In the end the Israelis did not go quite as far as I would have liked, but they did more than they had done as they were threatened with a prosecution. Indeed, they thankfully paid significant compensation to the family of this poor young man. Therefore, I am very much in favour of universal jurisdiction. It is important that we have a robust and effective system. However—this is the second point—there is an anomaly in the existing system, which the noble Lord, Lord Pannick, has rightly identified; namely, that the prosecution cannot take place without the consent of the Attorney-General. This is the debate that the noble Lord, Lord Phillips of Sudbury, and the noble Lord, Lord Pannick, had.

I know that memories fade and that it is a number of years since I did this job, but my recollection is that every single one of the universal jurisdiction offences requires the consent of the Attorney-General to a prosecution. Of course, the Attorney-General can always issue a nolle prosequi, but that is different. In these cases, Parliament has taken the view that a prosecution of this sort has such a public element to it that it should not proceed without the consent of the Attorney-General. As the noble Lord, Lord Pannick, pointed out, the consequence of that is that we have this anomaly. A private group or a private individual, no doubt for good reasons but sometimes perhaps not—I will come back to that—can have an individual arrested even though, when the matter goes to the Attorney-General, the prosecution will not take place.

I first came across the practical problem to which this matter gives rise in the case of Major General Almog, which has been referred to. The first that I knew of an application to arrest Major General Almog was when we received a call from the relevant court to ask me whether I wanted to say anything about it. I could not say anything about it as I had no role at that stage; my role would come later. I could not do anything. I make this point also because one of the briefings that I have seen on this issue suggests that there is no evidence that in that case there was no prior notice given to the Attorney-General of the intended application. I know that there was not in that case because it took place on my watch. From that moment I have considered how you deal with the anomaly that you can have somebody arrested but ultimately there will be no prosecution. That gives rise to a number of problems. First, it gives rise obviously to the problem that someone may be detained, deprived of their liberty and certainly restricted in their movements for a period before the papers reach the Attorney-General and a decision can be made. That is not good for the individual. Secondly, it is not good for the people who have, as it were, promoted the prosecution in the first place. They will be disappointed that, having got somebody arrested, the matter does not proceed.

There is a question of the public funds involved—perhaps it is for your Lordships to decide how important this is—but there is also the consideration that such action will in certain circumstances exacerbate relations with what may be a friendly state if, for good reason—I will come back to what that may be—an Attorney-General says no to a prosecution but somebody has been locked up for a period of time, or at least prevented from going about their business. That will do nothing for good relations and there may be circumstances—the noble Lord, Lord Pannick, referred to such a circumstance, hypothetically, at least—where that could be very damaging to a wider interest.

For a long time I believed that it was necessary to deal with the anomaly. One comes back to the difference between noble Lords’ amendments and the Government’s amendment. Fundamentally, the difference comes down to this: other noble Lords’ amendments say that you should notify the DPP and he should have an advisory role. The Government say that this process cannot happen without his consent. What is the difference between those stances? It is not the difference of timing because if you are going to notify the DPP and ask him to give an advisory view, you need to give the man or woman time to consider it. I agree with what the noble Lord, Lord Pannick, said about the ability of the CPS to move swiftly. I have also heard it said that one of the problems is that there may not be enough time. In the cases that I have seen, the groups that have wanted a prosecution have known for some time that they would like to see that particular individual prosecuted. They may not have known that he or she was travelling on a particular day but they have been assembling their evidence. I see no reason at all—I understand that the DPP has offered this—why there cannot be a system under which they present their material to the DPP so that he and his staff have a reasonable opportunity to consider it and can form a view as to whether or not they will give their consent.

I see real dangers in the present system. It is an anomaly. It leads to dangers to the individual and risk to the people who promote this. It risks relations. The noble Lord, Lord Pannick, said that he knows of cases—indeed, he has advised on cases—of people who are frightened to come to this country. I have heard this as well. The Government will know better, and if that is the case, it is a bad thing. It is a bad thing if in fact they are being deterred from coming where ultimately there have been no prosecutions.

[Lord Thomas of Gresford]

Does the noble and learned Lord agree that it would be quite wrong for the DPP to give in advance immunity to someone coming to this country?

[Lord Goldsmith]

I am really not sure that I agree with the noble Lord. It is not an immunity, but if the question arose and the DPP had seen the material that was going to be produced, had examined it and, having regard to the evidential test and the public interest test, he was of the view that he would not consent to a prosecution, I do not see why he should not say that. That would not be done in a broadcast, but if there were a legitimate reason to know the answer, so that someone can, for example, come to attend an important meeting with Her Majesty's Government, why not? In that respect, what the noble Lord, Lord Carlile of Berriew, said about the DPP having an opportunity to consult a policy statement about this was very wise. That is exactly what I would expect this particular DPP to do; and he would look to what all the interests were. That would, no doubt, be one of the questions that he would consider—to what extent is it right? He would want to make sure that he is not bounced into making wrong decisions and that he has an adequate opportunity to decide. That is important.

That takes me to where I was going when the noble Lord, Lord Thomas of Gresford, intervened—the amendment in his name and that of the noble Lord, Lord Macdonald of River Glaven. There are two points about that. The first is the point made by the noble Lord, Lord Carlile. Neither this DDP nor, I hope, any DPP needs the straightjacket of being told by Parliament how to do his or her job. They can be trusted to do that without that sort of straightjacket.

[Lord Thomas of Gresford]

My Lords—

[Lord Goldsmith]

Let me just make this point and of course I will give way to the noble Lord. I made the point about that amendment not just because it is surprising that he is putting it forward on the basis that it is intended to restate the law as it stands, because it patently does not do that, but because, as the noble Lord, Lord Carlile, said, it demonstrates the dangers of trying to be prescriptive as to exactly what the tests should be.

[Lord Thomas of Gresford]

I think that the noble and learned Lord misunderstands the purpose behind our amendment, which is not to put a straightjacket around the director, but to give assurance to people who want to come to this country that they will be treated in exactly the same way as a resident or a British citizen would be treated. I should have thought that the noble Lord, Lord Pannick, would welcome that assurance for the purposes of advising his clients.

--- Later in debate ---

[Lord Goldsmith]

I have to say that the one thought that had not crossed my mind when I read this amendment was that it was intended to give reassurance to people coming from abroad. Noble Lords can form their own views in relation to that. I oppose that amendment.

I want to consider the final amendment, which was spoken to by the noble Lord, Lord Carlile of Berriew. I give way to the noble Baroness.

[Baroness Tonge]

The noble and learned Lord is very generous and I thank him for giving way yet again. Before he moves on to my noble friend’s amendment, can he explain something to me? I am enjoying and learning a huge amount from this debate, but I am not a lawyer. Let us say that a British citizen is arrested on a Saturday night, or whenever, for some reason or other, and put into the cells for perhaps one or two nights, and that no charge is brought in the end. What is the difference between that and someone who may or may not have committed war crimes being put into a cell and held for one or two days, but no charge is brought?

[Lord Goldsmith]

My Lords, I thank the noble Baroness for what she kindly said about this debate, but I should have thought that she and I would agree on this without hesitation. So far as is possible, no one should be detained and deprived of their liberty in circumstances where ultimately they are not going to be charged with a criminal offence, or for some other good reason. I do not like the idea of saying, “Oh well, it is all right, because after a night out in the pub, people may be locked up for a night; let us lock up the Foreign Minister”, or a general from another state. If there will not be a prosecution, it makes no sense to do that.

The other fundamental difference is the second element missing from the debate. Parliament has decided that in such an offence, universal jurisdiction is enormously important and we should do our bit to ensure that tyrants, despots and war criminals do not find a place of refuge in this country. Absolutely, but it has decided that that should be done by giving the ultimate responsibility to the Attorney-General to decide whether prosecution takes place. The anomaly is that, despite that, prosecutions can be started and people can be detained, even though that will not happen.