Illegal Migration Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

[Lord Wolfson of Tredegar (Con)]

Is that not precisely what the Vienna convention on the interpretation of treaties provides for: that each nation interprets it? States have to relate to and deal with the body to which the noble Baroness refers, but that is separate to the legal question of what the convention actually means. These are two distinct legal questions, are they not?

[Baroness Chakrabarti (Lab)]

Well done. Article 35 continues:

“In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information”.


The bottom line is that the UNHCR is not just any other body, think tank, NGO or pressure group. It is a specific organ of the United Nations that was commissioned right at the beginning, when this convention was drafted, to have a special role in its supervision. That is why I support the noble and learned Lord, Lord Etherton, in suggesting as a bare minimum that our detention provisions ought to comply with guidelines—they are only guidelines—set out by the UNHCR. We can have these lovely little Oxford Union interventions from Members opposite, but the bottom line is that if we do not comply—

[Lord Wolfson of Tredegar (Con)]

I am sorry, but this is not an Oxford Union intervention. There is a clear distinction between an obligation to co-operate with a body in the implementation of the convention and that body having a role in the interpretation of the convention. They are different legal concepts and, with great respect, the noble Baroness knows that; it is quite wrong to elide one with the other. “Interpretation” does not appear in Article 35 and is deliberately excluded.

[Baroness Chakrabarti (Lab)]

I am very grateful, obviously, to the noble Lord for his intervention. I repeat:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


This was the body given special status in the drafting of the very precious convention that was drafted with key instigation by the wartime generation in this country for reasons that I need not repeat.

If we do not comply with guidance from the UNHCR in relation to the detention of asylum seekers and refugees, who will? For that reason alone, I am very glad to support the noble and learned Lord, Lord Etherton.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak briefly on Amendment 69 in the name of the noble and learned Lord, Lord Etherton, and others. My intervention is prompted by a meeting I had earlier today with the disabled Greens group, specifically on the question of meeting the needs of disabled asylum seekers and refugees. That caused me to look up the details of the UNHCR Detention Guidelines, specifically point 9.5, which says that states may be required to make reasonable accommodations to ensure that they meet the specific needs of disabled asylum seekers. It says:

“As a general rule, asylum-seekers with long-term physical, mental, intellectual and sensory impairments should not be detained”,


and that accommodation needs to be accessible.

The disabled Greens raised with me their particular concern about the barges, about which the Government seem very enthusiastic and to which they have been paying a great deal of attention. It is difficult to see how those barges could possibly meet the accommodation requirements of disabled asylum seekers.

A number of noble Lords referred to the historic situation at Manston, but we have seen the Chief Inspector of Prisons expressing great concern about what is happening there right at this moment. The focus has very much been on children but, if we are not able to identify and assist children appropriately, I really wonder whether we are also able to identify and assist refugees with disabilities, who may have specific needs. Can the Minister say how the Government will ensure that they meet the needs of asylum seekers with disabilities?

Finally, without in any way daring to intervene in a discussion between two lawyers on a fine technical point, I just note that Article 35 of the convention, referred to by the noble Baroness, Lady Chakrabarti, says that:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


The relationship does not look much like co-operation at the moment.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid I rise again to make a point that really should not have to be made. I made the point on a previous group that we are a dualist state where international law is not part of domestic law unless and until it is so incorporated by this Parliament. Later, perhaps in a question, the noble Baroness, Lady Chakrabarti, rather poured scorn and said that this was some sort of technical dualist point. It is not a technical dualist point; it is a fundamental part of our constitution.

Another fundamental part of our constitution is that, when we sign up to international treaties such as the Vienna convention, we have to look at what they actually say. This is not an Oxford Union debating point for two reasons: first, it is far more important than that; and secondly, I have never been a member of the Oxford Union. Article 31 of the Vienna convention, on the interpretation of treaties, says:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.


Each state therefore has to interpret its obligations under a treaty.

Some treaties, such as the European Convention on Human Rights, have a court attached to them. If you sign that treaty and sign up to the court, you are obliged to abide by the rulings of the court, in so far as those rulings emanate from the treaty. For example, Article 46.1 of the European Convention on Human Rights provides that the UK has to abide by any judgment given against the UK by that court. That is what we signed up to in the treaty. The refugee convention does not have a court attached to it. Therefore, this country, like every other, has to interpret the treaty bona fide—in good faith.

What, then, is the position of the UNHCR? It is exactly as the noble Baroness, Lady Chakrabarti, read out from the treaty, but it is not the gloss that she put on it. The word “interpret”, which she used in her speech, does not appear in the treaty. That is not an accident, because the states were not going to give the UNHCR the power—[Interruption.] I will give way if the noble Baroness, Lady Chakrabarti, wants to make an intervention; otherwise, I cannot hear her.

[Baroness Ludford (LD)]

If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:

“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”


I suggest that that is not a million miles from assisting in the common interpretation of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

[Baroness Ludford (LD)]

The noble Lord is a good lawyer and I am not, and I know that time is pressing on. However, it says more than just that we should co-operate with the UNHCR. It asks contracting states to facilitate the UNHCR’s

“duty of supervising the application of the provisions of this Convention”—

I emphasise “supervising”. I do not know how that terminology was arrived at but it is saying more than that the UK must co-operate with the UNHCR. The UNHCR has a sort of supervisory duty, and I think that is more than what the noble Lord is saying.

[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

[Lord Etherton (CB)]

Perhaps I could just add to all of this. I am sorry to do so; it is a bit unseemly for the lawyers to start arguing among themselves but I think I ought to record that I do not agree with the proposition of the noble Lord, Lord Wolfson, that the effect of Article 31 of the Vienna convention means that this country or any country can give to such a refugee convention any meaning it wishes to. It has to apply, under Article 31 of the Vienna convention, the wording of the refugee convention, bearing its ordinary meaning in the context of what it proposes.

This is a sideline. The Committee needs to concentrate on what the role of the UNHCR is. I think that it is perfectly obvious to virtually everybody that it has a special supervisory role under the refugee convention, as interpreted in accordance with the Vienna convention, in the application and the practical application of the refugee convention. What I was talking about in my amendment, supported by the noble Baroness, Lady Chakrabarti, was giving due weight to such a body. There is no other body that has that role. This body does, and it has been given by the United Nations.

Illegal Migration Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Patten of Barnes (Con)]

I apologise for not taking part in the Second Reading debate on this Bill, but I have made amends by sitting through the entire debate this afternoon. I am sure that, when I reflect on the last few hours, I will realise how much I learned. There are two points I would like to make.

First, I am surprised that, despite the intervention of the right reverend Prelate—and despite, I am sure, his prayers as well—some Members of the House continue to conflate the issue of what was once disgracefully called by a Minister the invasion across the English Channel with the general issue of immigration. We can deal with the issue of immigration—and there is nothing wrong with that at all—best of all by having a serious labour market policy. That is the only way we will deal with immigration that does not set one party against another in a sort of auction of prejudice. I hope we will stop making it more difficult to discuss this Bill by talking about it as though it were a key to deal with the issue of immigration.

Secondly, I was surprised to find a spokesman for the People’s Republic of China. Why did the Chinese say they were perfectly at liberty to break the joint declaration? They said it was a historic agreement; it was out of time; it was like a packet of peanuts that had passed its sell-by date. So, I am never going to believe that, simply because we signed something 10, 20, 40 or 50 years ago, it does not have any relevance today. But I am looking forward to hearing from the Minister whether or not he thinks this Bill is in line with international obligations, and I am looking forward, I suppose, to the contribution from the Chinese ambassador in the next debate.

[Lord Wolfson of Tredegar (Con)]

My Lords, like my noble friend Lord Patten, I have sat through all of this debate. I rise because my name—or, at least, a name close to mine—was mentioned by the noble Lord, Lord Hacking, at one point. The reason I rise with a little diffidence is that I have to catch a flight later this evening. I anticipate that I will be able to stay to the end of this debate and still make the plane, but if that turns out not to be right, I hope noble Lords will forgive me and not think that I mean any discourtesy to this Committee or those sitting in it today. I hope everybody will appreciate that is the last thing I would want.

Unlike other speakers, I cannot disavow being a lawyer. For better or worse, I am a lawyer. Therefore, let me make two short points at the outset. First, international law obligations are important. We ought to abide by them, as the noble and learned Lord, Lord Etherton, said. I would expect Parliament not to legislate contrary to a treaty obligation unless there were absolutely compelling reasons to do so and, in those circumstances, to make that very clear. Otherwise, we should always be legislating consistently with our international law obligations.

Secondly, as I made clear from the Front Bench on a number of occasions, I support our membership of the European Convention on Human Rights. I do not always agree with the decisions of the court—I do not always agree with the decisions of our domestic courts either—but that is a separate matter. I support us being in the convention.

I will not refer to all these amendments. I start with Amendments 3 and 148, which go together. Essentially, they refer to the statement that the Secretary of State must set out as to whether the Bill is compatible with the convention rights. Section 19(1)(a) and Section 19(1)(b) were put into the Human Rights Act as a political point. The noble and learned Lord, Lord Irvine of Lairg, made this absolutely clear when the Bill was going through this House. It was to keep people’s minds focused on whether the Government could say at that time that the Bill was compliant. It was never intended to be a legal bar. There is precedent in this House. The Communications Bill is a precedent for the Government being unable to state that the Bill was compatible with convention rights. When they were challenged, the challenges failed.

One cannot draw a line between being unable to make a Section 19(1)(a) statement and the Bill being in breach of convention rights. Section 19(1)(b) is very carefully drafted, and I listened carefully to the noble Lord, Lord Carlile of Berriew, who asked what it means. That statement is in the form that it is in the Bill because those are the words in Section 19(1)(b). That is what Parliament told the Minister to say. The structure is that if the Minister cannot make a Section 19(1)(a) statement, he or she makes a Section 19(1)(b) statement. Rather oddly, all that Section 19(1)(b) says is, “I can’t make Section 19(1)(a)”. Is that sensible? With respect, I do not think it is. If it were up to me, I would take out Section 19(1)(a) and Section 19(1)(b), which add more distraction than assistance. They were put in for political rather than legal reasons, and that is why the Section 19(1)(b) statement is in the form that it is in.

[Lord Hope of Craighead (CB)]

I recall saying once in the Appellate Committee that the courts were not bound by the statement—it has no legal effect.

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord is absolutely right; it has no legal effect. Can I put this another way? The Minister can make a Section 19(1)(b) statement and the court can find that the Act is compatible. The Minister can make Section 19(1)(a) statement and the court can find that it is not.

[Lord Carlile of Berriew (CB)]

Does the noble Lord not agree that the Section 19(1)(b) statement on this Bill is very different from the Section 19(1)(b) statement on the Communications Bill? I am sure that he has looked at it. Secretary of State Tessa Jowell made the following statement:

“I am unable (but only because of Clause 309) to make a statement that, in my view, the provisions of the Communications Bill are compatible with the Convention rights”.


By making that statement, Tessa Jowell made it clear that in a massive Bill there was only one clause that she could not make such a statement about. In effect, she stated that everything apart from Clause 309 was compliant with the Human Rights Act. That is how it was understood; we can all read the debates. Is it not incumbent upon the Government, when they make a statement as vague as that on this Bill, to explain what is and what is not compatible with the Human Rights Act?

[Lord Wolfson of Tredegar (Con)]

The noble Lord is making a political point. It may be good politics or bad politics, but whether the Government want to do that or not, my focus is on Section 19 of the Human Rights Act, which is very clear:

“A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading … (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights … or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.


We could have a nice debate about whether the statement in the Communications Act 2003 was consistent with Section 19, but that is not my point. My point today is simply that we cannot legitimately criticise the Minister for making precisely the statement that Parliament told him to make in Section (19)(1)(b) if he cannot make a Section 19(1)(a) statement.

[Baroness Chakrabarti (Lab)]

With respect to the noble Lord, nobody is criticising the Minister for making the statement. The noble Lord is the distraction, not Section 19. We are criticising the Bill that cannot be stated as compatible. It is the legislation that we have a problem with, not the honesty of the Minister in saying, “I can’t say that I believe this to be compatible”. It might be politics, but politics is the process of legislative scrutiny. The objective of Section 19 was to force Ministers to put their money where their mouth is in the debate and to say whether they believe that this draft legislation complies. If they say, “I can’t be sure”, it is quite right for us to do what we are doing. With respect, this is smoke and mirrors and not to the substance of this Bill.

[Lord Wolfson of Tredegar (Con)]

It is certainly not smoke and mirrors. The force of the noble Baroness’s point is, “If you can’t make a Section 19(1)(a) statement, there is something irremediably bad with the Bill”. My point is that if you are legislating in a novel area, there may well be circumstances in which you cannot make a Section 19(1)(a) statement. A Section 19(1)(a) statement is a 51:49 statement that, in your view, it is compatible. If you therefore think that it is finely balanced as to whether it is, you cannot make a Section 19(1)(a) statement. It would be wrong in those circumstances for a Government to think, “I shouldn’t bring this Bill before Parliament merely because I take the view that it is 50:50”.

[Baroness Chakrabarti (Lab)]

I am grateful to the former Minister and sure that he listened carefully to how Section 19 was introduced into the deliberations of the Committee earlier, not least by the noble and learned Lord, Lord Hope. Members of the Committee have been pointing to the contradictions in the Government’s position around the compatibility of this Bill—Section 19(1)(b) on the tin and then something else in the ECHR memorandum. It is the clarity of the Government’s belief that Members of the Committee have for some hours this afternoon been looking for.

[Baroness Ludford (LD)]

To avoid the noble Lord, Lord Wolfson, having to be up and down too many times, I will jump in here. The noble Lord, Lord Carlile, pointed out that the Secretary of State’s inability to make a Section 19(1)(a) declaration was in relation to only one clause. The content of that clause was the proposed ban on political advertising across all broadcast media. One can see why that might inhibit a Section 19(1)(a) declaration, but it is not on the same scale as what many of us in this Chamber this afternoon maintain are the various and extremely serious breaches of the European convention commitment. It is apples and pears, or chalk and cheese—I am mixing my metaphors horribly. It is not a good precedent for saying why there cannot be a declaration of compatibility for this Bill. It is not on the same scale.

[Lord Wolfson of Tredegar (Con)]

I am grateful for that shortish intervention. Essentially it raises the same point that the noble Lord, Lord Carlile, put to me and, without any disrespect, I give the same answer. I am focused, as a matter of principle, on what Section 19 does.

Amendment 2, which has already been referred to by my noble friend Lord Sandhurst, disregards Section 3 of the Human Rights Act 1998, which is a very odd section. Uniquely in our law, it requires that other Acts of Parliament be interpreted:

“So far as it is possible to do so”


in accordance with the convention rights. We do not do that in any other area of our law.

The case law under Section 3 is extremely complex. As has been referred to before, Sir Peter Gross set this out in his review of the Human Rights Act. I would be entirely content if I could be sure that the current law on what Section 3 does remains the law. What we have seen, however, when we look at Ullah, Al-Skeini or other cases, is that what Section 3 means and how it is interpreted by the courts has moved. In those circumstances, the Government are right to exclude Section 3 of the Human Rights Act from the Bill by way of its Clause 1(5).

--- Later in debate ---

[Lord Hannay of Chiswick (CB)]

I am most grateful to the noble Lord, because I was following with interest his argument, which seems to be that there are two sorts of obligation—those we incorporate in domestic law and international obligations—and the international obligations are less binding, important and necessary. Perhaps the noble Lord could tell me what the status of the UN charter or the Brussels treaty on NATO is. Does he mean that we, as a Parliament, could decide not to apply Article 5 of the NATO treaty? That would be a pretty serious statement to make.

[Lord Wolfson of Tredegar (Con)]

I am reluctant to give the noble Lord a private lecture on this, but I will set out a very short answer. I will be blunt but, I hope, legally accurate. The short answer to the noble Lord’s question is yes; we could do it. International treaties are not part of our domestic law. As far as our domestic courts are concerned—please let me finish and I will give way—if we were to legislate completely contrary to an international treaty, our domestic courts would have to abide by the Act of Parliament, because that is domestic law. Of course, that would put the UK in breach of the international treaty. It is not something I would recommend, but the noble Lord asked me a direct question about how the two interrelate, and that is a necessary consequence of being a dualist state. International treaties are not part of domestic law, unless and until they are incorporated.

[Lord Carlile of Berriew (CB)]

This could develop into a really interesting argument, I am afraid—between lawyers. The noble Lord just referred to the dualist theory, which of course is very important, but, in reality, international treaties are not usually entered into legislation because they are made under the royal prerogative. But that does not make them any less binding.

[Lord Wolfson of Tredegar (Con)]

I started my remarks by saying that international treaties are extremely important and that we should always legislate consistently with our international obligations, except in the most unforeseen and unusual circumstances. But that is not the question I was asked by the noble Lord, Lord Hannay. We are a dualist state. That is why we should object to these amendments, which seek to incorporate treaties by the back door.

[Baroness Chakrabarti (Lab)]

As a matter of fact, the European Convention on Human Rights was incorporated by the Human Rights Act 1998, the UN Convention on the Rights of the Child was incorporated by the Children Act and so on. These particular treaties have been given special status in our domestic law. I also take some exception to the idea that Amendment 4, which everybody can see, is somehow surreptitious or “back door”. We are having this debate because, by definition, some of us want this protection very much via the front door.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

With great respect, the noble Baroness is wrong. The Human Rights Act did not incorporate the convention. Can I just finish what I was saying? It took certain articles of the convention and reproduced them in a schedule to the Act of Parliament. That is not incorporating the convention; it is reproducing certain articles of it in the Human Rights Act. The point is not relevant to today but, if I am going to be interrupted on a point of law, at least let it be right. One has only to look at Schedule 1 to the Human Rights Act to see what that Act did.

[Baroness Jones of Moulsecoomb (GP)]

Before the noble Lord sits down, I hesitate to butt into this very exciting conversation between some great legal minds. I will of course pore over it in Hansard tomorrow. The point about courts saying “Did the Government mean this or that?” is that we are passing very bad laws that are not explicit—that is the fault of the Government—and this will be one of them.

[Lord Wolfson of Tredegar (Con)]

I entirely agree with the noble Baroness that we should pass clear legislation. I think she used the word “exciting” to describe lawyers.

[Baroness Jones of Moulsecoomb (GP)]

It was a joke.

[Lord Wolfson of Tredegar (Con)]

That is the first time I have heard the word used. The noble Lord, Lord Carlile of Berriew, used the word “interesting”, which is at least better than “expensive”, which is the usual word used. On that, perhaps I should sit down.

[Lord Dubs (Lab)]

My Lords, as a non-lawyer, I have found the last few minutes absolutely absorbing. I have learned a great deal without having to pay any tuition fees. I shall peruse Hansard with a great deal of interest and will advise any law students to do the same.

Although I am not a lawyer, I will make two brief comments. For some years, I have served on the British delegation to the OSCE, the Organization for Security and Co-operation in Europe. It is slightly different from the Council of Europe, but it involves a lot of discussion nevertheless. I serve on its migration committee and we have had a lot of discussion about how we do things in this country and about how other countries behave.

What I have noticed in recent years is that the respect which we as a country have earned has been somewhat diminished, and I am asked, “Why are you doing this?” and “Isn’t this a departure?”. I remember some years ago, when we still had a lot of respect, I was asked what I thought in terms of the British experience of the rule of law and so on and how I would approach a particular issue; I ventured to indicate how I thought we would do it. But those questions are not being asked any more. We are no longer treated as a model that has earned international respect because of abiding by the rule of law and doing things properly and openly.

I would have thought this Bill has debased our reputation, certainly in countries that follow these issues, and I think that is a matter of enormous regret. I used to take pride in the fact that, in international gatherings, I came and represented a Parliament of a country that was treated well by other countries. They regarded us as an example to follow, and I fear that that is much less the case than it used to be.

I will briefly make one other point about public opinion. Of course, I am aware that what we do and what public opinion thinks is crucial. We cannot just act as if public opinion did not exist. I remember when I introduced an amendment in 2016 about refugees—Theresa May was then Home Secretary—public opinion influenced the Government’s attitude. Initially, she asked me to withdraw my amendment, and I said I would not and then public opinion woke up to what was happening: it was the television pictures of the Syrian boy, Alan Kurdi, drowned on a Mediterranean beach.

I have told this story before. The amendment was going through and I heard somebody shout at me in the street. Now, we know that normally, when people shout at us in the street, it is abuse because we are politicians. In this case, a woman shouted out: “Keep going with your amendment”. It made me realise that public opinion is not monolithic and opposed to refugees; it moves with the times. The sad thing is—I am not allowed to call anybody a liar, am I?

Iranian Islamic Revolutionary Guard Corps

Lord Wolfson of Tredegar Excerpts

Tuesday 23rd May 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I absolutely join the UN rapporteur in condemning those executions.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful that the Government are keeping this matter under active consideration because otherwise there would be a real risk of a delay in a decision.

[Noble Lords]

Oh!

[Lord Wolfson of Tredegar (Con)]

The fact is that the Minister who answered the debate in the other place on 12 January this year was unable to identify a single reason why the IRGC should not be proscribed. My noble friend the Minister is also unable to find a reason, and that is because there is none. I respectfully urge my noble friend and the Government to take the only decision available to them, and to take it soon.

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for his analysis.

Public Order Bill

Lord Wolfson of Tredegar Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I hope I do not cause offence here, but I disagree strongly with the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss. I shall give the House a few words that would be more than minor but less than significant: it could be “reasonable”, “measured, “limited” or “tolerable”. There are all sorts of stages between “more than minor” and “significant”. As a veteran protester, I have probably passed quite a few red lines in the past, although I have never committed violence—so far.

I turn to Motion A1. Obviously I am upset, along with other noble Lords, I hope, at the fact that the other place immediately whips out all our good work and indeed our hard work. We spend time reading the Bill and thinking about it, which obviously the majority of people in the other place do not; they simply do whatever the Government tell them. I feel that the Government are trying to stop protest of virtually every kind—almost any protest imaginable—and that is so deeply oppressive that I could not possibly support it, so I wholeheartedly support Motion A1.

If the House will indulge me, I will mention the other two Motions as well so that I speak only once. I am horrified by Motion B2. I regret that Labour feels it cannot support Motion B1 in the name of the noble Lord, Lord Paddick. Sitting here, I have been thinking that I would vote against Motion B2, but that is probably too difficult. I do not even think I can abstain, so I think I am going to vote for it—but it will be through gritted teeth as it goes against all my libertarian views, and I am really annoyed with Labour for putting it in.

To finish on an upbeat note, there is Motion C. The Government make endless bad decisions. We are wallowing in an ocean of bad decisions nationally because of this Government, and some extremely unpleasant scenarios, with poverty and deprivation, are playing out because of them. But here they have done the right thing. It is incredible that the Government have come back with not just something that we generally asked for but with a slightly improved version of the Lords amendment, which I have to thank them for and say “Well done”—if that does not sound too patronising, or matronising. It is a win for civil liberties and the right of the public to be informed about protest and dissent.

On a final note, I have been saying that I am the mother of a journalist. That is a slight twist of the truth, because actually I am the mother of an editor, and I just know that she will be absolutely delighted with what the Government have done today.

[Lord Wolfson of Tredegar (Con)]

My Lords, I declare an interest: I generally pay my mortgage by debating the difference between “significant” and “more than minor”, so I am on very familiar territory.

The problem with the word “significant” is this: what is the opposite of significant? It is insignificant. There is therefore a constant debate in the courts when something, generally a contract, is said to be significant. Does it mean substantial—that is, quite a lot—or does it mean not insignificant, in other words more than de minimis? That is the problem with a word such as “significant”. For those reasons, I respectfully endorse the approach of the noble and learned Lord, Lord Hope of Craighead. We need a test here that is easy to apply.

Elsewhere in the law, we have the concept of significant risk. Of course, that is even more difficult, because there you are talking about risk—something that might happen—whereas here, in Motion 1A, we are talking about something that has happened or is happening. The noble and learned Baroness, Lady Butler-Sloss, asked what the difference was between “more than minor” and “significant”. In the Court of Appeal case of R v Lang, Lady Justice Rose, who is now in the Supreme Court, said in her judgment:

“The risk identified must be significant. This is a higher threshold than mere possibility of occurrence”—


that is, a risk case—

“and in our view can be taken to mean … ‘noteworthy, of considerable amount or importance’”.

Even in that definition, there is a difference, I would suggest, between “noteworthy” and “of considerable amount”—and that is in the context of a risk, not something that is actually happening.

Security Threat to UK-based Journalists

Lord Wolfson of Tredegar Excerpts

Tuesday 21st February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I agree with the noble Viscount that the service is indeed critical. I actually delivered some of the figures earlier on access by an Iranian audience to the BBC. Some 99%, as I said earlier, use BBC Persian on TV and online. Only 1% of the BBC’s total weekly Iranian audience of 13.8 million people get BBC news solely via radio. I agree that the BBC World Service does play a vital role in delivering high-quality, accurate and impartial broadcasting across the globe. The FCDO is providing the BBC World Service with over £94 million annually for the next three years; it supports services in 12 languages and improvements to key services in Arabic, Russian and English. That is in addition to nearly £470 million that we have already provided though the World2020 Programme since 2016. To say it has been closed is very much an overstatement.

[Lord Wolfson of Tredegar (Con)]

My Lords, over the weekend I read two stories in the media. The first was that fundamentalist clerics in Iran—a regime inspired by a warped perversion of Islam—had been plotting to murder Israelis and also British Jews here in the UK, as confirmed by the Minister in the other place yesterday. The second story was about the Abrahamic Family House in Abu Dhabi, the vision of Sheikh Mohamed bin Zayed, where on the same site a church, a mosque and a synagogue of equal size and equal beauty—designed by a British architect, Sir David Adjaye—have been formally opened. It is remarkable, I would suggest, that religion—in this case, the same religion—can be used to inspire murder or to promote dialogue and tolerance. Will my noble friend the Minister confirm that His Majesty’s Government will do all they can to maintain vigilance and protection against the former, while equally doing all they can to support and promote the latter?

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that. He is absolutely right: between 2020 and 2022, Iran did try to collect intelligence on UK-based Israeli and Jewish individuals. We believe this information was preparation for future lethal operations. My right honourable friend in the other place highlighted that Iran has not just targeted Jews and Israelis; it has targeted LGBTQ communities, Muslims and Christians. That is not just a flagrant betrayal of the principles of international law but, as my right honourable friend also said, a betrayal of ancient principles of Persian culture. So I entirely agree with my noble friend that we should be vigilant and on guard as to the former. I absolutely salute the efforts that he described in Abu Dhabi. Anything that promotes dialogue and tolerance between religions, or indeed peoples, has to be applauded and encouraged. I will certainly encourage the Government to do that very volubly.

Public Order Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Hacking (Lab)]

For the reasons that the noble Lord gave in his short speech, these statements by the noble Baroness, Lady Williams, who is greatly respected in this House, make me nervous.

[Lord Wolfson of Tredegar (Con)]

My Lords, as we are on Report and not in Committee, I will make three short points.

First, the noble Baroness, Lady Jones of Moulsecoomb, is quite right to refer to our freedoms. I am sure that she intentionally used the plural and not the singular, because there are two freedoms here that we need to have regard to: the undoubted freedom to protest and demonstrate, and the freedom to go about your business unhindered and not be harassed. Ultimately, in a democratic society we seek to balance those two freedoms. We need to have regard to both sides of that coin.

Secondly, on the objects that could be caught by these clauses as drafted, a number of references have been made to John Lewis—I do not know whether its publicity department is grateful for that. It would be a misconception to proceed on the basis that, merely because an object has been or could be bought in John Lewis, it is therefore inoffensive and should not be caught by the criminal law. The last time I was in John Lewis, which I accept was some time ago, it sold very large knives, hammers, ropes and other implements. Let us put the John Lewis point to one side; it is a good old-fashioned red herring.

Thirdly, I turn to what the clause provides. The noble Lord, Lord Deben, and the noble and learned Baroness, Lady Butler-Sloss, focused on the powers of the constable in Clause 11(7). The important thing about Clause 11(7), I would suggest, is that you have to read the clause as a whole. Clause 11(1) starts with an officer at

“or above the rank of inspector”

believing, first, that some offences are going to be committed and, secondly, that people will be carrying prohibited objects, which are defined in the clause. Next, that officer has to reach three conclusions under subsection (4). I invite noble Lords to look at subsection (4), because “necessary” appears there three times. He has to believe reasonably, first, that

“the authorisation is necessary to prevent the commission of offences”;

that the “specified locality”—it has to be a specified locality—

“is no greater than is necessary to prevent such activity”;

and that the period of time, which cannot be more than 24 hours, is no more than is necessary. What can the superintendent do under subsection (5)? All they can do is to continue that authorisation—not start it, but continue it. For how long? No more than a further 24 hours. It is in that context that the constable can apprehend and do a stop and search.

--- Later in debate ---

[Lord Patten of Barnes (Con)]

I would like to follow what my noble friend just said, or at least the beginning of his remarks following the speech by the noble Baroness, Lady Boycott. If the Chinese Communist Party, through its quisling administration in Hong Kong, was introducing legislation like this, we would denounce it. The Foreign Office would denounce it—it would be in its six-monthly report about attacks on freedom of speech and attacks on freedom in Hong Kong—and we would all cheer. It is astonishing that we are proposing in this country the sort of thing which we would denounce if the Chinese Communist Party were doing it in Hong Kong.

[Lord Wolfson of Tredegar (Con)]

My Lords, I may be labouring under a misapprehension, but surely there is a critical difference between this country and China. As I understand it, the proposed new clause would prevent a constable exercising a police power for the principal purpose of preventing someone observing or reporting on a protest. If we do not pass this amendment, that act—that is, arresting somebody for the principal purpose of preventing reporting on a protest—would still be unlawful: it would be an abuse of police powers to do that. The difference is that here we are being asked to pass legislation to make illegal that which is already unlawful. That is the concern I have with it. When I was a Minister, I was frequently told, “You should add this clause and that clause to send a signal”, and I kept saying, “The statute book is not a form of semaphore.” My problem with this clause is nothing to do with the content of it; I just have a problem with passing legislation to make unlawful that which is already unlawful.

[Lord Paddick (LD)]

My Lords, there cannot be any legitimate objection to journalists, legal observers, academics or even members of the public who want to observe and report on protests or on the police’s use of their powers related to protests. We have seen in incident after incident how video footage of police action, whether from officers’ own body-worn video or that taken by concerned members of the public, has provided important evidence in holding both protesters and police officers to account for their actions. The need for this amendment is amply evidenced by the arrest and detention of the accredited and documented broadcast journalist, Charlotte Lynch, while reporting on a Just Stop Oil protest. It is all very well for noble Lords to say, “Well, if somebody was arrested in the way that Charlotte Lynch was arrested, it was unlawful”, but the fact is that Charlotte Lynch was taken out of the game for five hours and detained in a police cell, where she could not observe what was going on. We need upfront protection for journalists and observers, and not to rely on a defence that they can put after they have been handcuffed, arrested, and put in a police cell even though they are in possession of a police-accredited press pass. We support this amendment and will vote for it if the noble Baroness divides the House.

Public Order Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I will speak to my Amendment 55. I am grateful to follow the speech of my noble friend Lord Faulks. My amendment addresses the legal difficulties caused by the judgment of the Supreme Court in 2021 in the case of Ziegler, in respect of offences in which it will be, and will remain, a defence for a person charged to prove that they had a lawful or reasonable excuse for the act in question.

The judgment in Ziegler concerned Section 137 of the Highways Act 1980, which makes it an offence for a person

“without lawful authority or excuse”

wilfully to obstruct

“free passage along a highway”.

The Supreme Court ruled that the exercise of the convention rights to freedom of expression and freedom of assembly and association—which might loosely be summarised as the right to protest—constituted a lawful excuse. This has the effect that, before a person may be convicted of obstructing the highway, the prosecution must prove that a conviction would be a proportionate and thus justified interference with that person’s convention rights. In practice, this has caused real difficulties for the police, who at times have appeared paralysed. It has made it difficult for judges to run trials fairly and for magistrates to reach decisions.

My amendment leaves in the word “reasonable”. It does not make it a strict offence to obstruct the highway. You can still do it if you have a “lawful authority or excuse”. What is to be judged in future would be the duration and nature of what is done, not the fact that you have what you consider to be a high motive—whether it is flat-earth or anti-abortion protesters, it does not matter. It is not about whether you are a good person, or you think you are a good person; it is about what you are actually doing and whether you are stopping ambulances and people going about their daily lives unreasonably and for too long.

The amendment means that conduct being intended or designed to influence government or public opinion will not, of itself, make it reasonable or lawful. That is consistent with the jurisprudence of the Strasbourg court. I stress that the court has said:

“In a democratic society based on the rule of law, the ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.


However, the law protects only the right to peaceful assembly. Articles 10 and 11 of the convention establish that public authorities are entitled to interfere with the right to protest for legitimate purposes such as the prevention of disorder, the prevention of crime and—importantly—the protection of the rights and freedoms of others. It is not about stopping every march, but about stopping prolonged obstruction. That is what we are about.

The Strasbourg court has gone on to rule that the rights of the public include the right to move freely on public roads without restriction, so there are two rights here; you have a right to protest, but the general public also have a right to move freely on public roads without restriction. It is a balancing exercise. The court has further recognised that states have a wide margin of appreciation in determining necessity when it comes to taking action against those who deliberately disrupt traffic or other aspects of normal life.

The right to protest in a public place exists, but it is not unfettered. It must be balanced against the rights of your fellow citizens. If the public are to be protected in the face of these novel types of protest we have not seen before, which in their duration and nature go far beyond what is fair and reasonable, the police must be able to intervene and not be paralysed by anxiety. Peaceful assembly and ordinary marches will still be protected. The public will still have to suffer and tolerate a measure of inconvenience and delay, but that will be within bounds.

My amendment would end the state of affairs in which persons who obstruct the highway, damage property or seek to avoid arrest can distort and upset the proper balance by asserting their motive. Peaceful protest will be permitted, but the balance will be restored. That is why, at the end of the amendment, it makes it plain that

“this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.

Henceforth, if my amendment is adopted, your assertion of a high motive will not suffice. You will be judged by what you did, how long it went on for, and the effect on other people.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.

Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.

On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.

[Lord Coaker (Lab)]

My Lords, in supporting Amendment 2 tabled by my noble friend Lady Chakrabarti and the noble and learned Lord, Lord Brown, and the points they have made, I will focus my remarks on Amendment 8 and the amendments consequent to it which seek to define a “reasonable excuse defence”.

I start by saying that I cannot really believe the mess the Government have got themselves into on both the definition of “serious disruption”, which we discussed previously, and the definition of a “reasonable excuse defence” we are discussing now. Nobody disagrees with the noble Lord, Lord Faulks—again, I agree with the Constitution Committee, as, I think, do most of us—but it would be extremely helpful if there were a definition of “reasonable excuse defence” in the Bill. I do not think that is a point of disagreement between us; the Constitution Committee itself recommends that. However, let us look at Amendment 8 as an example of the wording that is also used in Amendments 17, 27, 33, 50 and 51, as well as in other related offences. What protest ever takes place that is not part of a current dispute? Who protests because they are happy about something? I have not seen any demonstrations saying how brilliant this or that is; there might be an example, but, usually, a dispute happens and then people protest it—that is logical. But in each of these amendments, you cannot use “an issue of current debate” as a reasonable excuse in any circumstance. That is what we are being asked to agree to in Clauses 1, 3, 4 and 7 and some of the later clauses. Those clauses currently contain the reasonable excuse defence; the Constitution Committee says, quite rightly, that it would help if that were defined; and the definition the Government have supported says that you cannot use a current dispute as an excuse. I could go on at great length, but it makes the point by itself—it is ludicrous. That is the amendment the Government are supporting and that they are asking people to vote for.

Migration and Economic Development Partnership with Rwanda

Lord Wolfson of Tredegar Excerpts

Wednesday 15th June 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Lord will understand that I cannot talk about other countries, but I know that other countries are interested in the scheme we have agreed with Rwanda.

[Lord Wolfson of Tredegar (Con)]

My Lords, two points are absolutely clear here when one talks about the rule of law. I declare an interest as a practising barrister. First, I would not like to be identified with several of my clients, with the greatest of respect to them. A lawyer should not be identified personally with the cause for which they are arguing, nor should a lawyer be identified, with the greatest of respect, with the people smugglers engaged in this enterprise.

Secondly, does the Minister agree that the European Court of Human Rights would do itself more favours if, instead of passing orders with no named judge attached to them, just as justice is done in this country by judges whom we can identify, orders of the European court were also in the name of an identified judge?

[Baroness Williams of Trafford (Con)]

I used to be so grateful to have my noble friend beside me. I am now very grateful for his wisdom behind me, and he is absolutely right.

Queen’s Speech

Lord Wolfson of Tredegar Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a great pleasure to follow the right reverend Prelate. I declare my interest as a practising barrister, in what is my maiden speech from the Back Benches. I do not know whether the convention against controversiality therefore applies to me, although as the formal Motion before the House is to propose a humble Address to Her Majesty, nothing can be less controversial, or indeed command more unanimous acclaim.

I would like to say a few words about the proposed measure to replace the Human Rights Act with a Bill of Rights. I am conscious that having done, let us say, a fair amount of work in this area while serving as a Minister, I feel a little like the expectant father who, having seen the 30-week scan, now paces anxiously outside the delivery room to see what on earth has happened in the meantime. I hope that the Bill will be delivered both safely and in rude health but, as we wait for it, a little historical context might be in order.

It might come as a shock to some commentators, but human rights did not begin in 1998 with the passage of the Human Rights Act. The UK signed the European Convention on Human Rights in 1950, and extended the right of individual petition to the European Court of Human Rights in 1966. What really changed in 1998 was the ability of individuals to vindicate their convention rights in the UK courts, rather than having to get a train to Strasbourg. As we have heard again this morning, the UK will remain a signatory to the convention, and convention rights will still be enforceable in our courts. One might therefore ask what all the fuss is about.

One answer is that, rather like the Judicial Review and Courts Act in the last Session—and I declare an appropriate interest there as well—too many commentators appear to work on the basis of, “Tweet first, read the Bill later”. Others take it as axiomatic that anything emerging from a Conservative Government must be bad, although it was a Conservative Government who signed and ratified the European convention in the first place. The truth is that human rights remain controversial because the subject is often the place where law and politics meet—and I shall make four short points in that context.

First, human rights law is often seen as something which causes problems rather than provides protections. People moan about “human rights” in the way that they moan about “health and safety”, although I suspect that the absence of either would cause them problems—they would miss both if they were not there. I do not put all our current constitutional problems at the door of the noble and learned Lord, Lord Falconer of Thoroton, who will speak next, although the rather attenuated role of the modern Lord Chancellor is one of them, but he might agree with me that, in retrospect, the language of “bringing rights home”, used for the 1998 Act, was unfortunate because it cast human rights as a foreign implant in our legal soil, whereas in truth many of them actually have firm jurisdictional roots in this country and have been grafted on and become part of our common law tradition.

Secondly, as often with law, the issue is frequently not the rights themselves but the way they have been interpreted, a point made forcefully in several papers from Policy Exchange. That is because the Strasbourg court uses the living instrument theory when interpreting the convention, which ends up with that court deciding what additional rights it thinks a modern democracy ought to have, and which, necessarily, are not found in the text of the convention itself. So, the convention has been held to apply extraterritorially—for example, to British Army bases in Iraq—despite there being no basis in the text for that conclusion. Rights in the text are given a radically new meaning. Article 8, which was obviously intended to protect personal and family life from the surveillance of totalitarian regimes, is now found to extend to noise abatement issues, the legal status of illegitimate children and the non-payment of rent. Those issues are important, but my point is that in a democracy they are better resolved not in a courtroom but in a parliamentary Chamber.

That brings me to my third point. Law is sometimes messy, and politics, as I now know only too well, can be messier. But politicians—at least, some of them—are elected, while judges are not; politicians can be removed, judges cannot. I value our judges enormously, even when, perhaps especially when, they decide against my clients. But it is because of that respect that I do not want to see judges being pulled into what are essentially political or moral issues: these should be decided here and not on the other side of Parliament Square.

My final point is that debate is good, both here and in the public square, both the physical and the online public square. When the Bill of Rights is laid before Parliament, I want to see an energetic public debate. As has been said, free speech is the cornerstone of rights; the right, ultimately, on which all other rights depend. I therefore wait with interest to see how that proper emphasis on freedom of expression is to be squared with the apparent approach in the Online Safety Bill to limit speech which is deemed—I am not sure by whom, where or on what basis—to be entirely lawful but none the less harmful. I take the view that people need to know what the boundaries are, and those boundaries we call “law”. Legal consequences should follow only when legal boundaries have been breached. That is, I suggest, part of a society governed by the rule of law.

We heard the prophet Amos quoted a few moments ago. I will conclude with the psalmist, for whom justice and law are the foundation of God’s throne, of which Her Majesty’s Throne in this Chamber is a constant reminder. I suggest that justice and law are, and should be, the foundation of our society as well.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Consideration of Commons amendments & Lords Hansard - Part 2
Tuesday 22nd March 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 107, to which the Commons have disagreed for their Reason 107A.

107A: Because the amendment is unnecessary as there is no legal barrier to local authorities setting up and running academies.

Motion K agreed.