Terminally Ill Adults (End of Life) Bill

Lord Macdonald of River Glaven Excerpts

Friday 12th September 2025 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, when this question was last before your Lordships, I opposed any alteration to the present law, but I have changed my mind because I have come to believe that our present arrangements are discriminatory and hypocritical. These arrangements benefit one group by conferring upon them effective immunity from prosecution for assisted suicide and damage the rest by withholding that same immunity on what looks like an arbitrary basis.

To explain this, let me go back to my five years as DPP, when around just 100 cases involving assisted suicide came across my desk. We did not prosecute a single one of them. In some cases, this was because the bodies had been cremated in Switzerland and there was no firm evidence of cause of death. This meant that our first test for prosecution—that a realistic prospect of conviction existed—was not met. In other cases, bodies were repatriated for burial, and we had a cause of death—usually massive barbiturate poisoning. Here, the evidential test was clearly met. However, even where it is, there is a second test to consider, because prosecutors are given the discretion to determine whether a prosecution would be in the public interest. In each case, we decided it would not. Why? At a basic level, we felt that a mother, father, son or daughter asked to accompany a loved one to Zurich faced a choice that no jury would regard as real—what to do: to take your terminally ill, suffering daughter yourself and to stay with her while she died, or to leave her to be taken by somebody else? Even presupposing a rational English jury, following proper directions of law from a rational English judge, we believed that that jury would never convict a mother or father in that situation. In all likelihood, they would regard the intrusion of the criminal law into such grief as an abomination.

Since my time, my successors have invariably followed this reasoning except in cases of exploitation or other venality, which were never present in cases I considered. Indeed, my immediate successor, Sir Keir Starmer, was even required by the then judicial committee of your Lordships’ House in its last judgment before becoming the United Kingdom Supreme Court to publish guidance on the factors prosecutors would consider in determining where the public interest lay in assisted suicide cases. Like me, Sir Keir had resisted this step on the grounds that it would constitute the DPP issuing guidance to the public on how to break the law and get away with it.

But that is where we are. We all know that if you assist a suicide in Switzerland and avoid anything the DPP has categorised as an aggravating feature, you may be investigated but you will never be prosecuted. Of course, there are cases where improper pressure, greed or wickedness are involved, but these would remain serious crimes even were this Bill to pass. These few cases aside, it means that the reality is that the vast majority of assisted dying cases abroad have, in effect, been decriminalised, with notable help from the old judicial committee and no involvement from Parliament as a legislative body. That, in itself, is strange, but what is worse is that this dispensation—this de facto right to die—applies only to those with the physical ability, the wherewithal, family and friends willing to risk breaking the law to help them, and the knowledge to do so. Those who are too ill to travel, who do not have the wherewithal, who cannot find anyone to help them or who are simply unaware of the extreme unlikelihood of prosecution are left to suffer in the UK. They are abandoned by a state that is unwilling to put the current law into practice yet equally reluctant to ensure the benefit of its studied inactivity is available to all. In my view, this represents an abuse of the cardinal principle of equality under the law and it can be addressed only by provisions of the sort contained within the Bill.

Border Security, Asylum and Immigration Bill

Lord Macdonald of River Glaven Excerpts

2nd reading
Monday 2nd June 2025 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, I also congratulate the noble Lord, Lord Harper, on an excellent maiden speech and welcome him warmly.

I broadly welcome the Bill, and I believe that many of the enforcement measures it contains will assist in the fight against organised immigration crime. They had better, because this scourge is a growing threat to the cohesion of our society and the credibility of our democratic institutions. That is true not just here in the UK but across the whole of democratic Europe. People are losing trust, so it is essential that we are realistic and honest about what we face. It is clear that mass migration on the scale we are now seeing and the organised crime gangs that profit from it are drivers of a weakening faith in democratic institutions, bringing the rise of dangerous forms of political extremism—again, not just here but across Europe.

These conditions are fuelling nationalism and xenophobia throughout the democratic world, and the failure of mainstream democratic parties and Governments to deal with the question has played an important part in the installation by popular vote of authoritarian Governments, not just on our own continent but on others. It should be clear to everyone that if parties of the centre, centre-right and centre-left do not deal with this issue and all that flows from it, there is no shortage of parties on the political extremes that will be happy to do so—and if they are ushered in by discontent over migration, they will do much else besides.

The reason why I believe the Bill can only begin to touch the hem of the problem is that the policy challenge is broader and deeper than a simple question of law enforcement. It is the context created by the United Nations refugee convention of 1951 and its protocol of 1967. The refugee convention was created in the shadow of the Second World War and was generally understood to be a response to the horrors of that conflict, particularly to the barriers faced by Jewish people seeking to flee Nazi Germany in the 1930s. The 1967 protocol broadened its terms to include within its compass the entire world.

I will make just one point to illustrate the historical context of the refugee convention and its striking contrast to the world of today. At the time of its enactment in 1951, it was considered that there were around 2.1 million refugees under the mandate of the United Nations High Commissioner for Refugees. In 2024, according to the UNHCR, there were no fewer than 122.6 million internally displaced persons around the world and no fewer than 43.7 million refugees. In addition, in the 74 years since the adoption of the convention, the world has become smaller, knowledge of conditions in developed countries more broadly available and travel over distance across seas and whole continents far easier. In the light of that, why would millions of people not seek better lives, more opportunities, and to escape with their families from violence and oppression? What could be more natural? Why would millions of people not avail themselves of the services of organised criminal gangs promising a better future in some newly reachable, unimaginably rich country?

It is in the light of the changes since 1951 that I believe the rubric of the refugee convention must be considered. It says that anyone with a well-founded fear of persecution in their place of abode is entitled under the convention to asylum when they arrive in a contracting state, but that characterisation applies to literally tens of millions of people worldwide and may plausibly be claimed by tens of millions more.

So what are we to do? It is no answer just to shrug; again, we have to be realistic because at some stage we are going to have to deal with this. My own view is that we may have to revisit the refugee convention to make it fit for the modern world—to create an architecture that allows, for example, for the application of quotas between nations and of course the admission of those grievously at risk, so that we may fulfil our humanitarian function without damaging our own social and political cohesion. Discussions are already taking place across Europe about how arrangements under the European Convention on Human Rights may be reordered to allow countries more effectively to define and regulate their borders. As a strong supporter of the European Convention on Human Rights and the Strasbourg court, I urge the Government to become an enthusiastic participant in those discussions.

As long ago as 2016, the distinguished Columbia University academic professor Mark Lilla wrote in his fine book The Once and Future Liberal that parties of the centre-left that espouse identity politics, that atomise people by race, by so-called privilege, sex and gender, building great hierarchies of polarisation and grievance, would never be able to create winning electoral coalitions across socioeconomic divides. Indeed, such an obviously misguided and solipsistic ideology would succeed only in alienating the left’s natural supporters and ushering in an age of populism. The result would be social division and the strengthening of political reaction. Although Professor Lilla once told me that the response of some of his university colleagues to his book was to label him a white supremacist, history has plainly proved him right. Today, a weak and confused response to an unprecedented surge in mass migration holds the same danger. That danger is particularly acute for parties of the centre-left, and we are a maximum of four years away from our next general election.

King’s Speech

Lord Macdonald of River Glaven Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, I too warmly welcome the noble Lord, Lord Timpson, and I regard his appointment as Prisons Minister as one of the best decisions the new Prime Minister has made since he took office. I also welcome the noble Lord, Lord Hanson, who will be winding up this debate. I wish to address penal policy, and I declare an interest as president of the Howard League for Penal Reform.

After decades during which, if we are honest with ourselves, we have to concede that both the UK’s main political parties were occasionally prone to weaponising criminal justice for electoral gain, the chickens really have come home to roost. Successive Governments created new offences, raised sentences, reduced remission and increased tariffs, and the result has been an epic failure of public policy, filling our crumbling prisons to capacity and forcing the new Lord Chancellor to announce emergency measures on remission—just to keep the system from complete collapse, as she made clear. But this response buys just 18 months until the prisons are full again, so on its own it looks rather like the sort of sticking-plaster politics that the new Prime Minister decried so often in opposition.

It is a crisis that was foreseeable. As we know, Alex Chalk, the estimable former Secretary of State for Justice, who is a great loss to Parliament, warned the Prime Minister that this would happen, and it was left until after the election. But this is precisely how we got here. Headlines before delivery, a sporadic arms race in punitive rhetoric—these were political choices made over many years by Governments of all stripes, quite disconnected from the pragmatic delivery of justice. As everyone now sees, a particular low was the failure to increase prison capacity in the face of a rocketing prison population driven by deliberate public policy. A bit like operating a brewery without manufacturing bottles, for 30 years Governments have been drunkenly good at increasing the flow of inmates, but without creating sufficient new spaces to house them. A government spending review in 2020 promising an impressive 20,000 new prison cells by 2025 has brought us fewer than 4,000, with one year to go. They claimed the full number would be operational by 2030: did anyone really believe that?

There are two reasons why prison-building is unpopular with Governments. First, it is mind-bogglingly expensive: each new cell costs over £600,000 of capital expenditure. At this price, who would choose a prison over a school or a hospital? The second reason is that for the great majority of prisoners on short sentences—those who are not dangerous, and those who are addicts, mentally ill or just a nuisance—prison demonstrably does not work, and successive Governments have known it.

We do not just have the highest prison population in western Europe; we also have some of the worst recidivism rates. For adults released from sentences of less than two years, no less than 50% reoffend. We know from research that recidivism rates are lower for those on community punishments. Why should this be surprising? As a notably right-wing Conservative Home Secretary, Lord Waddington, said many years ago:

“Prison is an expensive way of making bad people worse”.


Bereft of proper facilities for education or rehabilitation, strained to breaking point by austerity and neglect, ludicrously portrayed by some media outlets as holiday camps, and warehousing some of the most damaged people in our society, British prisons should be a stain on our collective conscience. Many of the chief inspector’s reports should be a source of national shame. What a tragic farce, then, that in so many cases they do not even work.

Perhaps something is changing. The Prime Minister is a careful and strategic man. He will have been well aware of the history of the noble Lord, Lord Timpson, as a prison reformer, and from what we know of the Prime Minister’s attachment to planning and process, and we know quite a lot, it seems unlikely that he would have brought someone with the noble Lord’s views into government if he did not intend to give him some space to imagine a fresh penal policy, less focused on incarceration and more directed towards punishment and rehabilitation in the community.

As the noble Lord, Lord Timpson, has said in the past, only around a third of those presently in jail truly belong there: those who are dangerous, are a risk to the public and must be confined for reasons of public safety. Another third should be receiving therapeutic mental health and addiction interventions in the community, and the rest should be on proper rehabilitative community sentences.

This watershed in prison overcrowding is a shared responsibility, and it is important to note this. It will not do for the new Government to try to blame everything on their immediate predecessors. The truth is that the previous Labour Government were also culpable, frequently criticising judges, introducing the policy of imprisonment for public protection and driving up tariffs with no adequate prison building programme to house the inmates their punitive policies were creating. I am confident that under the new Prime Minister and his law officers, attacks on the judges and the Parole Board will cease, but if this new Labour Government do not understand and accept their own predecessors’ role in this debacle, they will hardly start from the right place in what must become a shared process of broad and deep reform and a real change in the way we think about crime and punishment in our country.

Sir Edward Heath: Operation Conifer

Lord Macdonald of River Glaven Excerpts

Wednesday 17th January 2024 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, I too congratulate the noble Lord, Lord Lexden, on securing this important debate and on his perseverance in this important matter.

It is worth recalling the context for Operation Conifer. It arose in the depths, and I use that term advisedly, of the Metropolitan Police’s—frankly, weird—fixation with the criminal fantasist, Carl Beech. Noble Lords will remember that this man, now serving a richly deserved 18 years in prison, claimed to have been abused by, or witnessed others being abused by, a former Home Secretary, a former Chief of the Defence Staff, a former director-general of the Security Service, a former chief of the Secret Intelligence Service and a former Prime Minister. What were the odds? How credulous did the police have to be to take these claims seriously, notoriously publicly describing the allegations to be “credible and true”, even before the conclusion of their investigation—indeed, almost at the beginning of their investigation? This was like some macabre version of Cluedo, with distinguished public servants reduced to the status of playing cards, only they were real people with real families and real reputations being steadily shredded in real time.

It was within the midst of this storm of scandal, public outrage and credulity that Operation Conifer opened, disgracefully, with the superintendent of police of the Wiltshire Constabulary standing outside the gates of the former home of the by then dead former Prime Minister in Salisbury’s Cathedral Close, calling for “victims” of Sir Edward Heath’s alleged sex crimes to come forward.

This was a remarkable low in policing endeavour. It smacked of an unworthy attempt by the then chief constable of the Wiltshire constabulary, the since disgraced Mike Veale, to curry favour with the public by demonstrating that Wiltshire Police “got it”—that it was on board with the public outrage and would act swiftly and firmly. This behaviour was reckless; it did not smack of real policing and looked political. Therein may lie the true public scandal: not that Sir Edward Heath was guilty of crimes of sexual abuse, for plainly he was not, but that Wiltshire Police may have allowed a critical aspect of our justice system, the criminal investigation phase, to be hijacked in order that it might impress what it took to be a strong public mood.

Of course, there was never any evidence against Sir Edward. The final insult was that, when this became clear, Wiltshire Police sought to give itself spurious cover for its ill-fated investigation by releasing the completely meaningless statement that, had Sir Edward still been alive, he would have been interviewed under caution. As Veale knew then, and surely still knows now, the bar for an interview under caution is so low that its invocation in these circumstances was no more than a weaselly attempt to evade deserved criticism at someone else’s expense. It looked like a final, cruel undermining of Sir Edward’s reputation in the service of the Wiltshire constabulary retaining, as it must earnestly have hoped, some shred of credibility after this fiasco.

It seems to me that this sequence of events is so worrying and so potentially undermining of public confidence in the probity of police investigations that it demands, as noble Lords have said, a public inquiry into the allegations that Sir Edward faced, so that this matter may finally be put to rest and some measure of justice finally be dispensed.

Illegal Migration Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, the noble Lords, Lord Carlile and Lord Kerr, will be pleased with my remarks because this is my plea for the impact assessment.

I am delighted to see that we may get a different answer because we have a different Minister, although I have to tell the Minister that if he says “in due course” or “on the first day of Report”, he will get the reaction that his noble friend Lord Murray got. I say, half in jest, it was not great knowing that the Minister was going to reply to this point about the impact assessment, given what happened when he was replying to me yesterday with respect to the Public Order Bill, when the Explanatory Memorandum was published the day after the other place discussed the public order regulations and I received it at 2.27 pm for a 7.30 pm debate. I hope that the noble Lord, Lord Sharpe, having learned from that, is now on the case to ensure that the impact assessment will be with us well before Report.

The serious point is that all noble Lords are saying to the Home Office that it is simply unacceptable that we are flying in the dark here. We need the information before us. I hope the noble Lord, Lord Sharpe, can come up with another phrase which gives us more hope and expectation, because that is the serious point here.

I thank the noble Lord, Lord Carlile, for his support for Amendments 134 and 135, and the noble Baroness, Lady Ludford, for her support for Amendment 138. As the noble Lord, Lord Carlile, said, what we have here is an attempt to bring accountability and review into the system. This is about Home Office operational efficiency. The asylum system is in chaos. If it is not in chaos, I would be grateful if the Minister could tell me what word he would use for the enormous backlog, the increase in the time that any decision is taking, the drop in the number of people being returned, the surges in people coming across the channel, and the individual injustices. I remind noble Lords, if they have not seen it, that 616 migrants crossed the channel on Sunday. I am not sure whether there have been any since, but on Sunday they came.

The noble Baroness, Lady Hamwee, was right: if I had known about Amendment 132—also in the name of the noble Lord, Lord Paddick—requiring an independent review of the management and operation of the Home Office, I would have added my name to it. If we cannot get the bureaucracy, the applications and the decision-making process right, we will have a problem. No law will work if there is bureaucratic inefficiency, so I very much support that amendment.

Amendment 134, requiring the Government to publish an impact assessment of the financial consequences of the Bill, is a probing amendment, but you can see why we require one. We had more information from the Times newspaper about the potential cost of the Government’s reforms, when it went from £3 billion to £6 billion, than from the Government. All the Government can say is, “We don’t comment on leaks”. How on earth can we legislate when all we have to operate with are newspaper stories? We have no way of knowing. If the Government say this is not the case, then what is the case? What is the projected cost? Hence, there is Amendment 134.

Amendment 135 would require the Government to publish an impact assessment on the use of hotels and so on after the Bill has been enacted. Every now and again we read that the Government have bought a couple of barges; that certain hotels are not going to be used; that “it’s not going work at that military camp, so we’re going to try this one”. Then, suddenly, a disused liner sails into Weymouth. This is fag-packet policy. What are we doing? What is the plan? We have tabled this amendment because, clearly, the Government have a plan. In the Home Office, there will be an assessment of what is needed and how it will be done. There is a secret plan, which the Government will not share with us. If that is not the case, and instead it is a case of, “Goodness me, we’ll have to buy a barge”, then buy “Barge News” and see what is available next week. “Oh, I know: there’s a liner coming in”—

[Lord Macdonald of River Glaven (CB)]

Has it occurred to the noble Lord that there may not even be a secret plan?

[Lord Coaker (Lab)]

It had not occurred to me—but it has now.

The serious point is that there must be a plan. It cannot just be a question of, “I know—we will buy a barge, get a liner or buy this military camp”. There must be some sort of strategy, secret plan, non-secret plan or memo saying what the Government are going to do, yet we are not allowed to see, share in or understand it. I have never known anything like it. This is a flagship government Bill. It is an important way of dealing with a challenge that we all know must be dealt with, yet we are having to deal with it in this way. It is nonsensical.

There is another reason why we need to know this. As noble Lord after noble Lord has said, the whole premise of the Bill is that every single migrant crossing the channel or entering illegally will be detained and subject to removal. That must mean that the Government have a figure for how many detention places they will need. If not, can the Minister say, “We have no idea what we will need”, “This is what we think we will need”, or, as would normally happen, describe the worst-case and best-case scenario, or best guess? We have no idea. How many detention places are the Government assuming they will need for their Illegal Migration Bill to work?

Illegal Migration Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

I urge the Government to adopt this amendment for the sake of our moral character, our international reputation and, most importantly, the victims of modern slavery in the UK. But if that does not motivate them, I urge them to accept it for the sake of their own stated objectives.

[Lord Macdonald of River Glaven (CB)]

My Lords, allow me to add a few words about law enforcement. It seems to me that the problems the Bill intends to confront would best be solved by international co-operation, including international rules of law, but also by firm domestic law enforcement against the traffickers. That is a critical component.

It is very difficult for me to conceive of successful cases against traffickers without the co-operation of their victims. Persuading victims of crime in some categories of crime, including human trafficking, to give evidence against their tormentors is difficult, complex, sensitive, time-consuming work for the most obvious of reasons—the victims themselves feel under threat. This Bill gives those co-operating witnesses, who are showing enormous courage, no encouragement, no succour, no assistance, no help whatever. It will undoubtedly, in my judgment, make successful cases against traffickers less likely. This Bill is not simply anti-asylum but anti-prosecution.

[Lord Kerr of Kinlochard (CB)]

The strongest argument, apart from the legal and moral arguments, is the practical one that has just been made. How do you persuade victims of slavery to come forward and assist in a case if, when they do so, they are declared inadmissible and dispatched abroad? It is simply counterproductive and destructive of the whole basis of the Modern Slavery Act.

I would like to start as the noble Lord, Lord Coaker, did, by pointing to the Government’s announcement last week—there seemed to be some other things going on at the end of last week. It would have been better to make the announcement in this House, but it slipped out that the two-tier system for handling asylum introduced by the Nationality and Borders Act was being abandoned. We spent weeks pointing out that it would not work. However, better the sinner that repenteth, and I warmly welcome the Government’s decision to drop it. I think they were absolutely right.

The asylum queue now, at about 178,000, is 20,000 longer than when, with objections, we passed the Nationality and Borders Bill. A principal reason for it getting longer is the two-tier system that was introduced, which is administratively unworkable. I warmly welcome the Government changing their mind, but it is a shame that it remains a stain on our statute book—a clear breach of the UN refugee convention, as the UNHCR confirmed at the time. Of course, it was a smaller breach of the refugee convention than this Bill, as the UNHCR has confirmed.

If I could have the Minister’s attention, I ask him to at some stage correct the record on the UNHCR’s role in these matters. In the first day in Committee, asked about its views on the Bill, he acknowledged:

“Some parts of the UNHCR have views on the Government’s position”


but said that the UN

“is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]

He might want to reconsider that. Under Article 35 of the convention, the duty is laid on the UNHCR of supervising the application of the convention and all parties to it have an obligation to co-operate with the UNHCR. As for “some parts” of the UNHCR commenting on the Government’s position, it has published and formally conveyed to the Government its formal position and legal observations on the Bill in the exercise of its responsibilities under Article 35. That is what it is required to do and what it has done. To suggest that criticisms of the Bill come from “some parts” of the UNHCR but are not its institutional view is wrong.

I come back to the modern slavery amendments. Mine was taken in the middle of the night, unbeknown to me as I rashly went home shortly before midnight. One of the charms of being a Cross-Bencher is that you never have the faintest idea of what is going on. The usual channels rarely have a tributary around these parts. My amendment was crucial, but it would be out of order for me to speak to it now. However, I can praise the Joint Committee on Human Rights for its magisterial report that came out over the weekend. Its conclusion on the clauses we are looking at is exactly the same as that which the noble Baroness, Lady Meacher, came to:

“It is, in our view, wholly inappropriate to categorise victims as a threat to public order by the mere fact that they arrived … through an irregular route”.


It says—correctly—that Clause 21 breaches Article 10 of the convention against trafficking and formally recommends that it should be removed from the Bill. I agree. It seems to me that that is what we should do, so I shall support the noble Baroness, Lady Hamwee, when we consider whether it should stand part.

My general view is in line with that of the noble Lord, Lord Cormack: I do not like this debate, for a number of reasons, partly because the best debates have two sides to them. This is tennis with nobody on the other side of the net and I am fed up with it.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

That all depends on the facts of each particular case, As I say, that is what will be considered in accordance with the guidance that I have just described.

Where the Home Secretary concludes it is necessary for someone to remain in the UK for the purpose of co-operating with a law enforcement agency, the continued need will be kept under review. Section 65 of the Nationality and Borders Act already provides for the grant of limited leave to remain in such cases. The length of such leave should be considered on a case-by-case basis. As such, it would not be appropriate to provide for an arbitrary minimum period of 30 months, as Amendment 89 seeks to do.

[Lord Macdonald of River Glaven (CB)]

Would the Minister accept that, given the extreme sensitivity of persuading victims in these categories of offences to co-operate in the first place, and the almost full-time pastoral care that they have to be given in the approach to a trial, doing all of this from the countries to which these people are likely to be sent is going to be inordinately difficult?

[Lord Murray of Blidworth (Con)]

I am afraid I do not accept that, because of the advances in technology that I have already described. That is the position in respect of Amendment 89.

Economic Crime and Corporate Transparency

Lord Macdonald of River Glaven Excerpts

Committee stage
Thursday 27th April 2023 Grand Committee

[Lord Thomas of Cwmgiedd (CB)]

May I just briefly make four points? First, as regards exempting small companies, as a director of one or two small companies that are charities, I can see no reason at all why we should exempt them. Your accountant always goes through what measures you have in place to prevent fraud, and it is extraordinarily difficult to understand what the costs are.

Secondly, from the way in which the Bill is drafted, it plainly means a single body corporate. There is a whole host of good reasons why you would structure your corporate activities over a host of different companies. It is critical that, if you are to have a limit, it must include all associated companies. You can see a good illustration of the way this is done in the provisions of the Building Safety Act 2022 that deal with remediation in relation to cladding. The Government dealt with it there because so many SPVs—special purpose vehicles—are used in the property industry, and you simply cannot permit them to be treated separately. Certainly, there are extremely good reasons sometimes to structure your partnerships as a whole lot of separate partnerships, partly to limit your liability for negligence. However, it should not apply in relation to fraud.

Thirdly, dealing with two out of three tests is not sensible. Looking at the way in which you suggest fines be imposed on companies, if you are to go down this route, the variety of the ways in which companies operate is so enormous that if you are to have an exemption, you should catch as many as possible. Again, if you do not have a structure that brings in everyone, the position is more complex.

Lastly, I will say something about the reform of the doctrine of corporate responsibility. Of course, I agree with my noble and learned friend, and former colleague, Lord Etherton that we need to be very careful. However, we are trying to tackle economic crime, and there is therefore a special case to be made for dealing with that. If we say that we have to wait until we have the whole of the criminal law sorted out, although one or two people in this Room may see it in their lifetime—I see that the Minister has a young team behind him—the law moves with incredible slowness in reforming criminal justice, and if we do not go through with this in this Bill, I doubt whether even the young members of the team will see any change, not merely during their time at the Home Office but in their lifetimes. We ought to move now.

[Lord Macdonald of River Glaven (CB)]

My Lords, against the extraordinarily high rate of fraud offending, we have to set the fact that fraud is the most under-prosecuted offence within this jurisdiction. There is no doubt about that, and no doubt that people in the country understand it, are aware of it and are extremely angry about it, particularly victims of this crime. I would hazard a guess that virtually everybody present knows at least one person who has been the victim of a fraud that has not been prosecuted; I know several. That is a lot of people who are not getting justice—on both sides of the transaction, I might say. I therefore welcome this amendment but I am disappointed that SMEs have been carved out, largely because, on the Government’s own figures, no less than 99.9% of businesses in the UK are SMEs. That is a significant statistic when we are considering the size of this carve-out and the impact it is likely to have on the Government’s objectives.

Some comparisons have been made with the Bribery Act 2010, specifically Section 7, and the “failure to prevent” offence in that legislation. Similar arguments about SMEs were made during the debates that led to that legislation, including the claim that if SMEs were included within it then that would impact on their ability to export. I am sure these are the sorts of arguments the Government have in mind when excluding SMEs from this legislation—that somehow it would be too burdensome for SMEs, some of which, to most of us, are very large companies indeed. So it is germane that in 2015, the government survey of SMEs and the impact of the Bribery Act on them found that nine out of 10 had no concerns or problems whatever with the Act, and that 89% felt it had had no impact on their ability to export.

As the Committee has heard, when your Lordships’ House undertook post-legislative scrutiny of the Bribery Act, it concluded that there was no need for any statutory exemption for SMEs from the Act. The Law Commission similarly received submissions arguing that SMEs should be excluded from corporate liability reform. It disagreed and did not recommend any statutory exemption for SMEs. Furthermore, government research on SME adoption of preventive procedures in relation to the Bribery Act found that the average cost for an SME was £2,730, with medium-sized enterprises spending an average of £4,610. These are tiny figures that could not conceivably justify exclusion of SMEs from this legislation on the basis that it would be too burdensome for them. Points have already been made about the extent to which the Government are encouraging the placing of public procurement contracts with SMEs, and that is also highly significant.

Since the noble and learned Lord, Lord Garnier, has raised the question of prosecutorial discretion—it seems only yesterday that he was Solicitor-General, but that may be a sign of my age as much as his— I say in support of him that the amendment as drafted places a great deal of discretion at the disposal of prosecutors. The defence set out under new subsection (3)(b) is:

“It is a defence for the relevant body to prove that, at the time the fraud offence was committed … it was not reasonable in all the circumstances to expect the body to have any prevention procedures in place”.


That is a potential carve-out that would deal with any problem or concern the Government have that the amendment’s impact might be disproportionate on SMEs. For all the reasons I have set out, I do not believe that it would be. I believe the real effect would be to leave whole swathes of business activity completely unaffected by this legislation so that, in effect, fraud would continue—disgracefully, in my view—to be an under-prosecuted offence.

[Lord Cromwell (CB)]

The noble and learned Lord, Lord Garnier, referred earlier to making feeble jokes. Anyone who was here on Tuesday heard my feeble joke for this year, so the Committee will be relieved to know that I am not going to make any more.

I agree with all the previous speakers that the idea of creating a legal cliff edge, with whole, untouched schools of fish swimming in the sea below the cliff, is both problematic and fundamentally pointless. I agree with the noble Lord, Lord Agnew, and the noble Baroness, Lady Morgan, about enablers; we will be coming to that issue later, and it is a real concern. To me, it is rather like saying that SMEs do not need to worry about health and safety or do not need cyber security, and only the big firms do. Both those assertions are patently nonsense, but that seems to be the flavour of what we are faced with here with this cliff edge. I hope the Committee enjoyed my analogy about the fish.

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[Lord Macdonald of River Glaven (CB)]

Before the Minister moves to another area, the figure I gave that SMEs account for 99.9% of all companies and business organisations in the UK comes from government statistics—namely, business population estimates for 2022.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that information; I will come back on that.

National Security Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

I hope that the Minister, in responding to this debate, will be clearer than at Second Reading. I think that the justification the Government have provided is not strong enough. The expansions are far too strong. There are concerns that this would provide immunity, and there is a lack of risk assessment, for some of the serious crimes that I indicated. The preference would be for the whole clause to be taken out—I agree with the noble Lord, Lord Coaker, on our contention that the clause should not stand part—or at the very least for the Government to be very clear with regard to the interaction on the very serious offences outlined in my amendment. I beg to move.

[Lord Macdonald of River Glaven (CB)]

Before the noble Lord sits down, I just wonder whether he considers that there may be a difference between intentional killing, on the one hand, which may or may not be wrong, depending on the circumstances and context, and torture and sexual violation on the other, in respect of which it is very difficult to conceive that they could ever be right. Does he think that there may be a distinction?

[Lord Purvis of Tweed (LD)]

I understand the case. The Consolidated Guidance to Intelligence Officers and Service Personnel does not make the distinction. It does make the distinction that there is a lack of clarity when it comes to cruel, inhuman and degrading treatment and punishment. Our definitions of that may differ from those of some of our allies, or of others we are working with. For the other two areas, there is no distinction as provided for under the consolidated guidance. Indeed, the risk assessment criteria that all officers currently have to operate under—the checklist that exists within the guidance that they have to go through before entering into any of the security work with agencies—include all of these areas, including where senior personnel and legal advisers conclude that there is risk of torture or CIDT, and also lawful killing. This is in addition to what authorisations under the ISA may bring about.

National Security Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Baroness Manningham-Buller (CB)]

I will not take very long; I will just correct the suggestion of the noble Lord, Lord Wallace, that economic pressures on national security are a new addition. The Security Service Act 1989—the noble Lord, Lord Beith, who is not in his place, referred to this—talked about protecting the

“economic well-being of the United Kingdom”.

This is not a new issue. That is a point of clarification, for which I have not taken too much time.

[Lord Macdonald of River Glaven (CB)]

My Lords, on the minor tiff between the noble Lords, Lord Pannick and Lord Carlile, both of whom I have great respect for, I am inclined to side with the noble Lord, Lord Carlile. I have no doubt at all that economic well-being is an aspect of national security. It is worth observing that Clause 2(1)(d) requires that

“the foreign power condition is met in relation to the … conduct”

in question. In Clause 29, the “foreign power” condition is:

“For the purposes of this Part the foreign power condition is met in relation to a person’s conduct if … the conduct in question, or a course of conduct of which it forms part, is carried out for or on behalf of a foreign power, and … the person knows, or ought reasonably to know, that to be the case.”


That is the sort of conduct that we are talking about. We are not talking simply about one commercial organisation stealing a science secret from the University of Oxford; we are talking about this conduct being carried out at the behest of a foreign power, which rather colours the matter in the way that the noble Lord, Lord Carlile, described.

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

My Lords, the Minister has given no quarter. I suppose that is to be expected on the first day of a Committee on a Bill, with the Government defending their position as thoroughly as he has done. I hope that when he does read Hansard, as he has just promised to do, he will realise that there are a great many areas in which flaws in the Bill have been exposed—and exposed in particular by this group of amendments—where it is quite plain that conduct that ought not be criminal runs the risk of being criminalised. The question asked by my noble friend Lord Purvis of Tweed just a moment ago exposed the danger for people working for a foreign intelligence service if they are British citizens; they are plainly caught. There are a number of areas where assisting a foreign intelligence service, for instance, gives rise to particular difficulties.

Before I go on to any detail, let me say that it is a dangerous path for a Government to say that they do not believe that there would be many unjustified prosecutions because the public interest test for a prosecution would not be met. Let us remind ourselves that the prosecution services have to consider two things: first, whether there is a reasonable chance of a conviction on the evidence, and, secondly, whether it would be—

[Lord Macdonald of River Glaven (CB)]

Realistic.

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

“Realistic” is better than “reasonable”; the noble Lord knows far better than I what the test is.

The second point is whether it would be in the public interest to prosecute. That is a decision made by prosecuting authorities. What we are concerned about in this Committee is what conduct is criminal and merits a conviction in a criminal court. That carries with it the question of how a judge will be constrained to direct a jury as to what criminal conduct is. We have to get that right. Nowhere is that better shown than in this group of amendments.

The noble Baroness, Lady Jones of Moulsecoomb, was referred to jocularly in an earlier group by the Minister, the noble Lord, Lord Sharpe, who said that she often does not agree with government policy and the interests of the United Kingdom as defined by government policy. Of course, he is right that she often does not agree with government policy, but she is right to point out the danger of ill-thought-out laws that go too wide, criminalising behaviour that is no more than the democratic expression of dissenting views. That is one of the evils at which this whole suite of amendments that we have tabled is directed.

An example of how the Bill goes too far was highlighted by the response of the noble Baroness, Lady Manningham-Buller, to my Mossad example. She said that, of course, Mossad operating in the United Kingdom would be—I forget the phrase she used—notifiable activity, or it would notify of the activity. That is not the concern I was expressing. The concern that I and others were expressing is that a private citizen helping a foreign intelligence agency in the interests of the United Kingdom or compatible with them, without a government sanction and without working for the Government, would be criminalised. I suggest that it is wrong for that private citizen to be dependent on the Government, prosecuting authorities or the Attorney-General taking the view that the public interest test was not met.

In connection with the points made by the noble Lord, Lord Pannick, we simply heard no answer to his question about the tendering of legal advice. I know the Minister said that consideration would be given to that, but that calls into question the whole gamut of queries raised in this House, in this Committee and elsewhere about where the Bill goes too far. I suggest that where a Bill is too wide because it offends against human rights so that human rights are infringed and obviously infringed, the law can become positively dangerous—that is why the JCHR position taken on a number of these amendments is so important; I agree completely with the noble Lord, Lord Coaker, on this. We do not just have to consider a benign and friendly Government steeped in the traditions of British democracy. As the noble Baroness, Lady Chakrabarti, who is not here today, often says, you have to consider the possibility arising of a Government who are wholly against the traditional freedoms that are protected by our law on human rights. I suggest that that is the danger that we are concerned to defeat.

I therefore invite the Minister and his colleagues to go away and think very carefully about the breadth of these clauses and about the strength of the amendments that we have suggested to them, and to discuss with those people who have proposed amendments—we will all be willing to discuss these amendments and any refinements there should be; we are not wedded to the wording as it is the principles that are involved. Thus, by the time the Bill comes back on Report, they can be far more clearly defined, and the intent to prejudice national security—the subject of the Bill—should be clearly made out before anyone is subjected to serious criminal consequences as a result of misguided prosecutions and convictions that will inevitably flow from the misguided wording of the Bill. Having said that we will discuss it, at this stage I beg leave to withdraw the amendment.

Public Order Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I will speak to Amendment 94, lest it be overlooked in considering the broader issues in this debate. I accept that the issue before us in this section of the Bill is a sensitive one that deserves our most earnest consideration.

I agree in principle with the amendments to Clause 9 tabled by the noble Baroness, Lady Fox of Buckley, and the noble Lord, Lord Farmer. Amendment 94 relates to the criminal punishment attached to the proposed criminal offence. Given that the clause potentially criminalises people for praying quietly or offering support and advice to people in a public area, this is no small aspect of the clause. Making it illegal to quietly stand outside an abortion clinic or compassionately express one’s genuinely held belief about the sanctity of human life and the value of an unborn child, as proposed in this Bill, is surely a major step backwards for our country.

The right to enjoy freedom of speech and the right to peaceful protest have been hard fought for and should not easily be given away. Yet, as a result of this clause, anyone who influences, advises or persuades, who attempts to advise or persuade, or who otherwise expresses an opinion outside an abortion clinic, could be liable even in the first instance to a prison sentence. Surely this runs contrary to our basic freedoms. A former Home Office Minister said in March 2021:

“The right to protest is the cornerstone of our democracy and the Government is absolutely committed to maintaining freedom of expression.”


Can the Minister confirm that this new law as drafted would criminalise someone who accompanies a woman having an abortion who says to her, “Are you sure?”, even if the woman seeking the abortion is happy for that to be asked—that they would fall foul of this legislation? If so, what kind of a country are we living in?

I heard a lot of talk about the other place, and like two noble Lords who spoke—

[Lord Macdonald of River Glaven (CB)]

Does the noble Lord understand that prosecutors, in authorising and not authorising charges, have discretion in whether to prosecute a case? No prosecutor I have met would ever prosecute a case on the facts the noble Lord has just set out.

[Lord Paddick (LD)]

Is the noble Lord also aware that one of the amendments tabled by the noble Baroness, Lady Sugg, addresses exactly this issue, making somebody voluntarily accompanying a person to a clinic exempt from this clause?

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[Baroness Barker (LD)]

I very much welcome the noble and learned Lord’s help in trying to find a suitable wording for what we are seeking to do. I want to inform your Lordships’ House of what is happening: there are individual acts that, one by one, may not be intimidating but, put together in a pattern with a deliberate aim, they are.

I say to the noble Lord, Lord Balfe, that I am glad he was there with my colleague David Steel in 1967, but we are in a very different place now. Back in 1967, clinics were not having to deal with harassment as they are now.

[Lord Macdonald of River Glaven (CB)]

Does the noble Baroness agree with me that there is clear evidence of a concerted effort by well-funded, extremist United States—sometimes religious—groups to replicate in this country the situation that exists outside abortion clinics in the United States, in which women are routinely abused and threatened for trying to access medical care?

[Baroness Barker (LD)]

I do not think there is any doubt about that; the evidence is—