Lord Wolfson of Tredegar debates involving the Scotland Office during the 2019 Parliament

Mon 19th Feb 2024
Wed 28th Jun 2023
Thu 10th Feb 2022
Nationality and Borders Bill
Lords Chamber

Lords Hansard - Part 1 & Committee stage: Part 1
Wed 3rd Mar 2021
Counter-Terrorism and Sentencing Bill
Lords Chamber

Report stage & Lords Hansard & Report stage

Litigation Funding Agreements (Enforceability) Bill [HL]

Lord Wolfson of Tredegar Excerpts
Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, it is a pleasure to follow the noble Lord, Lord Carlile of Berriew, who made his points in his usual succinct style—notwithstanding that the usual channels, in what must be the paradigm case of the triumph of hope over experience, have allowed this debate between lawyers to proceed with no time limit whatever on speeches.

I begin by declaring my interest. I am a practising barrister in commercial and competition cases, which include cases where one party is supported by litigation funders; sometimes that is my client, and sometimes it is the other side.

As the House has heard, there is no doubt that third-party litigation funding is now and will remain part of our legal landscape. While this is not a debate about the merits of legal aid, there is no doubt that, in the real world, there is little prospect of a Government of any colour massively increasing the scope of civil legal aid. We must therefore be realistic about what will be in its place. Third-party litigation funding provides an important means to enable people to access justice, which is a fundamental part of the rule of law, and so to vindicate their legal right. That is the reality in the United Kingdom in 2024.

I remember doing cases where one party or the other—sometimes both—had to take out large loans or remortgage their home to fund legal costs, including the risk that they would lose and have to pay the legal costs of not only their side but the other side as well. This country usually has the “loser pays” system, which means that, if they lost, they could face financial ruin.

I therefore suggest that third-party litigation funding, together with the appropriate insurances that can be obtained, is a more attractive proposition for most litigants than taking out large loans, and therefore ought to be a more attractive proposition for society as well. As the noble and learned Lord, Lord Thomas of Cwmgiedd, explained, this is a worldwide market and an important one for the United Kingdom to remain a leader in. I suggest the real question is how we arrange our law to deal with the reality of such funding. That means we have to strike a balance: on the one hand, we want to provide access to justice, which is, as I say, an essential element of the rule of law; on the other, we do not want to see litigants given a raw deal by one-sided funding agreements, which mean that when they win, they can be left with very little.

However, it is perfectly right, as the noble Lord, Lord Arbuthnot, pointed out, to recognise that in many of these cases, the litigation funder is taking a very real risk. It is very easy after the event to say, “Oh, well that case was bound to win”. There is no such thing—I keep telling my clients this—as a case that is bound to win. Sometimes there are cases that are bound to lose, but that is a different matter. Therefore, we have to try to find a balance in this area. I very much welcome the review that the Lord Chancellor is setting up; I pay tribute to him for doing so. I hope and expect that this will be a cross-party endeavour.

PACCAR had the effect of treating many litigation funding arrangements as damages-based agreements—DBAs, as they are called in the vernacular—with the result that, unless they met the requirements of the DBA Regulations, they were unenforceable. I will not get into whether or not PACCAR was a surprising decision—I am reminded of one of AP Herbert’s “Misleading Cases”, in which losing counsel in the House of Lords seeks to avoid an order for costs on the basis that a decision of the House of Lords was an act of God, being something that no reasonable man could have predicted—but the fact is that PACCAR caused a real degree of consternation among litigation funders. It has also led to a huge amount of satellite litigation about funding agreements themselves, rather than the cases the funding agreements are there to support.

True it is that some funding agreements were renegotiated post PACCAR, so that instead of receiving a share of the damages—which is what caused the problem in PACCAR—the funder is instead paid an agreed multiple of its investment. There are, I understand, three cases of that type currently proceeding in the CAT—the Competition Appeal Tribunal. I think there are three; I am briefed in two, in one for the funded claimant and in the other for the defendant facing a funded claimant.

The fundamental point at issue is whether the decision in PACCAR should stand. The Government have concluded that it should not, and I broadly agree. I therefore support the Bill, which reverses the decision of the Supreme Court in PACCAR. As I say, that decision has been widely criticised.

I will make two other points. First, like the noble Lord, Lord Carlile of Berriew, I have my mind on other things happening this week. I gently note that this is a good example of the fact that Parliament is sovereign. There is nothing wrong with Parliament reversing a decision of the Supreme Court; ultimately it is for Parliament and not the courts to make the law in this or in any other area. The Bill is therefore perfectly constitutionally proper.

The second, and perhaps more substantive, point is this. I said that I broadly support the Bill, and I do. The reason for that slight note of caution—and it is a slight note—is that there is one issue I want to highlight. It is an issue which has been explained to me by people working in the area; it is not a matter relevant for any client for which I am acting.

The Bill as drafted restores the position ex ante—see Clause 1(4); it is retrospective in that regard. The phrase “retrospective legislation” is sometimes used to imply that the legislation is therefore, and necessarily, bad. That is not the case. The problem with retrospective legislation is not that it is bad in itself. It is that retrospective legislation should not, or at least should not without very good reason, disturb existing legal rights entered into on the faith of the law as it was.

I am concerned about the following sort of situation. Let us assume that someone had a funding agreement with funder A, which is then deemed to be unenforceable by PACCAR, so the litigant goes off and enters into a new funding agreement with funder B, which is PACCAR-compliant. The Bill, as I understand it, would revive the funding agreement with funder A and so leave the litigant with two funding agreements with two different funders on two different sets of terms. That is because the Bill operates retrospectively and does not cater for the fact that some litigants may have done all you could reasonably expect of them at the time; that is, going out to replace the unenforceable funding agreement with an enforceable funding agreement. I suggest that that does not make any sense and is not the intention of the Bill, although it seems to me, and, I think, to others, that that is what the Bill as drafted actually does. I have brought this to the attention of the Minister. I am grateful to him for his time in discussing the issue with me and to his officials for reaching out to discuss the matter with others. I am confident that a solution can be found to this perhaps niche, but none the less important, issue; otherwise, I support the Bill and look forward to participating in its further stages in your Lordships’ House.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Wolfson of Tredegar Excerpts
Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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I thank the noble Lord. I said that the court issued a press release; I did not say it made a judgment by press release. I think that is taking it a little too far.

The noble Lord states that the domestic judicial processes had been concluded, but the court said that they had not. All I am relaying to the Committee is the decision that was made. In my view it is reasonable, but I am not a lawyer, as the two noble Lords are. That was the reason the court made the decision, and the Government accepted it.

The point I wanted to make is that there were five other cases that day, which are not referred to as frequently. The requests for two interim measures were granted in order for the court to consider the cases in greater detail. That is correct, yes? Two were refused, which has not been mentioned so far, and one was withdrawn because the Home Office had changed policy in the meantime. Looking at the consideration of cases on that day, I do not think you would come to a conclusion—with three accepted, two refused and one withdrawn—that there was some deliberate blocking of the measure.

That prompted me to ask what the record of the UK has been on interim measures over the last years. There have been 178 applications overall, with most of them withdrawn, since 2021. We have fared fairly well against Germany with a total consideration of 264. That compares with 478 cases for France. We are doing quite well as far as cases against the UK go. If this is judicial blocking, and therefore the motives are to empower the courts to stop what the Government want to do, we need to look at the record of the decisions.

In 2021 five interim measures were granted against the UK and nine were refused. In 2022, five were granted against the UK and 12 were refused. In 2023—the most recent data—one interim measure was granted against the UK and 13 were refused. Far from this being judicial blocking—these cases are all to do with expulsions and relocations; this is not just in general terms—the UK’s system has worked really rather well, especially when compared with those of Germany and France. I would have thought that this is something that the Government would want to protect.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, the ancient court known as the Sanhedrin, at its full complement, sat with 71 judges and had a rule that the most junior judge would give judgment first. I understand the reason was that, if the senior judges had spoken and the junior judge disagreed, that would be arrogant; if they agreed, it would be impudent. I find myself speaking after the noble and learned Lords, Lord Hoffmann and Lord Etherton, who disagreed. Therefore, whichever side of this argument I take, it seems I am going to be guilty of both. I ask forgiveness from each of them.

Like the noble Lord, Lord Anderson, I will spoil any questions as to which way I will go by saying that I respectfully agree with the noble and learned Lord, Lord Hoffmann, and the reasons he gave for supporting Professor Ekins’ paper. It was interesting that, in opening the debate, the noble Lord, Lord Scriven, said that for about 20 years the jurisprudence of the European Court of Human Rights has been clear. That is true, but it begs the question: since the European Court of Human Rights has been there for rather longer than 20 years, why did the noble Lord limit his position to 20 years? The answer is that if he had said “for 23 years” the jurisprudence would have said something completely different.

What is remarkable in this area is that this is not a new question. As I said at Second Reading, the question whether the European Court of Human Rights should have the jurisdiction—and this is a question of jurisdiction—to issue interim injunctions or interim measures was specifically debated by the contracting parties back in 1949, and it was deliberately not put into the text in 1950. It was a deliberate omission, not an oversight. The states considered whether the court should have the power and, no doubt for reasons similar to that set out by the noble and learned Lord, Lord Hoffmann, decided that it should not. That caused no problem at all.

Year after year, the court operated perfectly well without this power. It ruled, in terms, that it did not have this power in 1991 and, a decade later, in 2001, it upheld that ruling. As I said at Second Reading, you then have a judicial volte face in 2005, and the judgment from which the noble Lord, Lord Anderson, quoted. It is an open question, and it is interesting to consider why there was this volte-face by the European Court of Human Rights. I suggested that it might have been “jurisprudential envy”, because the International Court of Justice held that it had the power to issue interim injunctions. But, of course, that is different, because the statute of the ICJ, particularly the French version, provides a basis in the foundational document of that court for it to have that jurisdictional power.

With respect, question of whether the court has a power to issue these interim measures rests on very slender foundations. How is it now said that the court has the power, and we are bound by it? The primary argument put this evening has been based on Article 32, which provides that the court has jurisdiction to decide on the operation of the convention. What is interesting about that argument is that it is not used by the court itself, which, so far as I am aware, has not based its jurisprudence on the fact that Article 32 gives it the right to say, “This is what our jurisdiction is, and this is what we are doing”. It is outside commentators who have tried to find a proper basis—because Article 34, which the court does rely on, is not one—for the court’s jurisdiction. It is rather like the archer who scores a bull’s-eye not by firing the arrow at the target, but by firing it and then drawing the target around it.

One comes to the conclusion that people would like the court to have the jurisdiction and then say, “Ah, well, there must be a basis for it—what about Article 32?” But it is not an argument that the court itself uses, and it is also a false argument. Article 32 is about disputes about the convention and its operation; they are to be resolved by the court. It is not a grant of unlimited jurisdiction to the court to defy the express terms of the convention, including Article 46.1, which says that states are bound only by final judgments and therefore, by implication, nothing else—and by the history of the convention, which, as I have set out, is contrary to the court having these powers.

Article 32 is not the “get out of jail” card. This is not a new point. A similar point came before the Supreme Court in the case of Pham in 2015—what would happen if the European Court of Justice exceeded its jurisdictional powers? The noble and learned Lord, Lord Mance, dealt with that issue in paragraph 90. I do not need to go through the answer, but it certainly was not, “Well, the European Court of Justice has a power to interpret the treaties, and if it says it has the power to do this, that or the other, necessarily it does”, which would be the analogue to the Article 32 argument.

With the greatest of respect, Article 32 simply will not do as a basis on which to found the jurisprudence of the court. Of course, there are other points to be made as to the process of the court, and those have already been set out by the noble Lord, Lord Faulks. For those reasons, the point underlying many of the amendments in this group—that the court has jurisdiction to issue these interim measures and they are binding in international law—is wrong. Therefore, these amendments ought to be resisted.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, Amendment 62 in the name of my noble friend Lord Coaker would ensure that a Minister of the Crown making a decision on an interim injunction consults the Attorney-General. This would ensure that, before making a decision on compliance with any interim measures issued by the ECHR for the purpose of blocking a person’s removal to Rwanda, the relevant Minister consults the Attorney-General, creating an additional safeguard. The noble Lord, Lord Wolfson, introduced his speech by saying he was not going to be arrogant or impudent, so I will adopt the same approach in my speech, which will be brief. I am not going to go into the legal arguments—many eminent lawyers have done that—but I am going to go into the politics and address what seems to me to be the question that has been left hanging in the air.

Yesterday morning, I watched the television and Mr Michael Tomlinson, the Illegal Migration Minister, was on our screens and he was absolutely explicit: he said that the flights will take off as soon as the Bill becomes an Act and the treaty comes into force. He said they will be going pretty much immediately. There was no question of the niceties of Rule 39 and all the other things we have been talking about; the subject simply did not come up. That is the politics of it: when the Bill becomes an Act, the treaty comes into force and those flights will be taking off.

My noble and learned friend Lord Falconer went into how the decision on Rule 39 might be made. The question he, and the noble Lord, Lord Faulks, asked, was, would it be subject to judicial review? To me, that is the question hanging in the air, and I look forward to the Minister’s answer, because as far as I can see it will be for the Attorney-General to make that decision, on the recommendation of the Prime Minister, and she will be doing that as a law officer. Today’s Daily Telegraph said—I do not know how it knows this—that when Mr Tomlinson was Solicitor-General, he had written legal advice saying that it would be illegal to go against Rule 39. I know it is private advice; nevertheless, that was in today’s Daily Telegraph.

So, there are two issues. First, the Illegal Migration Minister was explicit about the flights taking off on the conclusion of proceedings on the Bill. Secondly, what is the status of judicial review of any Rule 39 decision?

Safety of Rwanda (Asylum and Immigration) Bill

Lord Wolfson of Tredegar Excerpts
Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, aware of the hour, I rise very briefly, having attached my name to Amendment 81 in the name of the noble Baroness, Lady Chakrabarti, and the noble Viscount, Lord Hailsham. I am now very clear that the noble Viscount’s Amendment 82 is an ingenious way of addressing the issue of temporality, which we have been circling around again and again. However, I shall simply address Amendment 81.

As I think the noble Baroness, Lady Chakrabarti, said, today we have been introduced to a phrase, “the court of Parliament”, that many of us, certainly myself, were not familiar with. Amendment 81 goes to the sovereignty of Parliament and ensures that Parliament remains sovereign in decision-making. Like other Members of the Committee on this side of the House, I will avoid venturing too far into the internal pains of the Conservative Party, but I think that a section of the party that has recently arrived in your Lordships’ House is very concerned with sovereignty, and it has never been terribly clear whether we are talking about parliamentary sovereignty or Executive sovereignty. Another phrase for Executive sovereignty, of course, might be “the exercise of arbitrary power”. The amendment overcomes that problem, makes it very clear and ensures what kind of country we want to live in.

There is another point I want to raise briefly, because what the noble Lord, Lord Purvis, said on the financial issues was very interesting. I must admit that I have not ventured into those issues because, quite frankly, I have been concerned with stopping the whole thing happening, so the financial aspect, the money, has already been thrown away and that is where we are. However, the point the noble Lord made about commercial confidentiality being allowed to cloud any sort of transparency about what is happening is an issue of concern. Those in other sections of your Lordships’ House will know that I and the Green Party have very strong views about the use of services provided for private profit for what should be care; after all, what we are supposed to be talking about is caring for refugees. Will the Minister say, without going into too much commercial detail, what percentage of profit the Government have allowed for in that contract? If that is said to be still too commercially confidential, what would the Government consider a reasonable level of profit for someone to make from the housing of these refugees in Rwanda?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I also note the Clock and I will make points on the two headings. The first is on Amendment 81 in the name of the noble Baroness, Lady Chakrabarti. The basis for it, according to the Member’s explanatory statement, is that

“This amendment replaces … (an executive act), with a parliamentary trigger”.


The proposal is that instead of having an executive fiat, Parliament and parliamentary sovereignty would be put in its place. Unfortunately, the amendment does not do that. What it does is to take the pen away from the Minister and hand it to the Joint Committee on Human Rights. The reason is that the way this amendment is drafted is that two requirements need to be met. First, the Joint Committee on Human Rights has to report its belief that Rwanda is safe; in other words, if it comes to the conclusion that Rwanda is not safe, or might not be safe, then proposed new subsection (1A)(a) is not satisfied, and it falls there. The second requirement is that

“a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.

If, for example, both the other place and this House were to take the view that the Joint Committee on Human Rights had got it totally wrong and, in fact, contrary to its view that Rwanda was not safe, it plainly was safe, Parliament could do nothing about it. I am sure that is not what was intended, but it is a fundamental problem in the drafting and in the scheme if what is intended is to hand power to Parliament.

Just to make it clear, if that amendment were made to this amendment, I would still oppose it. The responsibility should lie with the Secretary of State. Let us be very clear about what this amendment would actually do. It would take the pen away from somebody who is elected and responsible to the electorate and hand it to the Joint Committee on Human Rights. I have the greatest respect for the JCHR—I appeared before it when I was a Minister—but it is wrong in principle that it and it alone should have the right to stop this legislation in its tracks. That is the first point I wanted to make.

The second point I want to make arises out of Amendments 35 and 90 and the point made by the noble and learned Lord, Lord Falconer of Thoroton, earlier that this is retrospective legislation. As we are in Committee—although many of the speeches seem to be Second Reading speeches—let me pick up one drafting point on Amendment 35. As I understand it, it would prevent a decision-maker making a decision relating to the removal to the Republic of Rwanda of somebody who arrived in the UK before the Act received Royal Assent. The words

“a decision relating to the removal”

are very broad. Would they include, for example, a decision about how old somebody is? That is a decision that will be needed under the current legislation and under this legislation. I would have thought that it cannot be intended that Amendment 35 would stop decisions which have, so to speak, that dual purpose. That is a drafting point.

The more fundamental point is whether this is retrospective legislation at all. I listened very carefully, as I always do, to the noble and learned Lord, Lord Falconer of Thoroton. With respect, I fundamentally disagree with him that this is retrospective legislation. What is retrospective legislation? The House of Commons Library puts it in these terms—this is from a paper it published in June 2013, but these are fundamental principles that do not change over time—citing Craies on Legislation, ninth edition. It says that retrospective legislation is generally defined as legislation which

“takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past”.

The two classic examples are, first, that conduct which is lawful when you do it is not later made unlawful; and, secondly, that the penalty for unlawful conduct when you do it is not rendered greater retrospectively. It is right to say that we have legislated retrospectively in the criminal context—rarely, but we have. The War Crimes Act 1991 and the International Criminal Court Act 2001 are examples of that. However, none of this is retrospective legislation. The example the noble and learned Lord gave is that somebody might have an argument which they could put in court that, for example, “I’ve got a brother here, I’ve got somebody here”. That is not a vested right.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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No. The noble Lord has misunderstood my argument. You are in this country before the Act. You have a right in the sense that you are, in fact, subject to persecution. You would have to advance the argument to get the right, but your right is a right to stay here, and a right to stay not on the basis that you may be exported to Rwanda. That is a right. It might not be viewed by the law as a “vested right” in the sense that he is referring to, but it is plainly within the spirit of retrospective legislation.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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A very good touchstone of when lawyers realise that—if I may respectfully say—the argument does not quite work is when they start referring to spirits of things. With great respect, that is not a vested right. If you have a right to asylum, you have a right to asylum. Under this Bill, you also have a right to asylum. What this changes is where you have the right to asylum.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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The person who would have a right to asylum in the UK under this Bill would no longer have the right to asylum in the UK. It is completely different. They may have a right to asylum in Rwanda, but that is not the right that they had when they were here which is going to be taken away from them.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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Will the noble Lord explain why if I come here and am entitled to asylum that is not a right?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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The right is to make a claim for asylum. That is the vested right absolutely. The right is the right to asylum.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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It does not work if the noble Lord shouts at me when he is sitting down. I am happy to give way. I hear what he says—that it is the right to asylum in the UK, and I am respectfully suggesting that is not the case under the law. The hour is late, and we will no doubt come back to this.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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A right to have possession of my property requires me to go to court and get it. It is still a right, even though I have to ask for it.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am sorry; that is totally different, because the courts—I will give way to the noble Baroness.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I think we have got to the heart of this. I am concerned about the time, not just for Members of the Committee but for the staff, just before the one-day half-term. I think perhaps the noble Lord opposite is indicating the difference he sees between, for example, property rights and humanitarian rights to refugee protection, which have been rights recognised in this country for a very long time.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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Of course they are rights that have been recognised for a very long time, but that was not the point being put to me, as I understood it. On the property point, if you have property, you have a vested right in property. The court is declaring that you always have that right. First, you do not have a vested right in asylum; it is not a right vested into you. Secondly, the Bill does not take away a vested right you have. You still have the right of asylum.

I think the noble Viscount is saying that it changes it. The question was of retrospective legislation, which is a fundamental point raised by the noble and learned Lord. The question is whether this is retrospective legislation. For the reasons I have set out, I submit that it plainly is not. I apprehend that we will come back to this. I do see the time. Unless there are any other interventions, I will pause there.

Debate on Amendment 35 adjourned.

Illegal Migration Bill

Lord Wolfson of Tredegar Excerpts
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, the refugee crisis in a global one and any sustainable solution needs to be international. If we do not comply with our international obligations, as set out by the noble Baroness, Lady Chakrabarti, we are unlikely to achieve the international co-operation necessary to deal with the crisis. I am afraid I do not agree with the argument put forward by the noble Lord, Lord Lilley, that because other countries do not abide by their obligations, we should not abide by ours either.

The noble Lord, Lord Green of Deddington, talked about the cost. The Government’s own impact assessment says that implementing the measures in the Bill will cost the country more than the status quo. In response to the noble Lord, Lord Horam, the impact assessment says there is an “academic consensus” that there is no evidence that the measures in the Bill will have a deterrent effect. Opinion polls may say that illegal migrants should not be allowed to settle in the UK but we are talking about genuine refugees; we are not talking about illegal migrants.

We support all the amendments in this group and Amendment 5 in particular, which we will support if the noble Baroness, Lady Chakrabarti, chooses to divide the House.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I have the misfortune to differ from the noble and learned Lord, Lord Etherton. I know that he will not think that this is any personal discourtesy. Let me take a few minutes to explain to the House why I respectfully disagree.

None Portrait Noble Lords
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Oh!

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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Noble Lords say “No”; I think there are important points of constitutional principle here, and if that means we take another two and half minutes over it, so be it.

The starting point is that we are, as the noble and learned Lord said, a dualist state. That means that the treaties listed in the amendment are not part of our domestic law. If you were to go to court and try to rely on, for example, the UN Convention on the Rights of the Child, it does not give you a right in domestic law. I will come back to that point in a moment.

Nationality and Borders Bill

Lord Wolfson of Tredegar Excerpts
We support all the amendments in this group, but we hope that they will not be necessary because we hope that Clauses 57 and 58 will no longer be part of the Bill by the end of Report in this House. I was wondering why the noble Baroness, Lady Williams of Trafford, the Home Office Minister, was not in her place today to deal with these issues. I would like to think that it is because she could not face standing up and supporting these parts of the Bill.
Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I thank all noble Lords for their contributions to this debate. I have listened to all of them with care. With respect to everyone else, I say that I always listen with care to the noble Lord, Lord Cashman, in particular, as I think he will appreciate from our exchanges on other matters. I got the impression that voices in support of the Government were a little thin on the ground on this matter, but I can assure the noble Lord, Lord Paddick, that my noble friend Lady Williams of Trafford is not doing these amendments not out of any personal reluctance; it was decided some weeks ago that my assistance on the Bill would include this group, and that is why I am doing it. It is fair to say that she has gone above and beyond on the Bill and others.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, just on that point, I was clearly not suggesting that the noble Baroness, Lady Williams of Trafford, did not deserve a break from her duties; she has been committed to this throughout. I said that I hoped that these parts of the Bill might be the reason, but I was obviously implying that they clearly were not.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I think it might be best if we just moved on from that because, respectfully, I am not sure that it was a particularly good comment in the first place.

The measures in the Bill build on the landmark—it really was landmark—legislation brought in by the future Prime Minister, Theresa May, in 2015. On this occasion, I am very happy to acknowledge that it was brought in by the coalition Government; it was a joint effort. Notwithstanding that I am not a Home Office Minister, as the noble and learned Baroness, Lady Butler-Sloss, reminded me on a number of occasions, I can say that the Home Secretary is committed to bringing forward further legislation in the area of modern slavery as a priority, to ensure an efficient and resilient system in tackling modern slavery. That department, which is obviously not mine, will look to introduce those measures when parliamentary time allows.

Lord Alton of Liverpool Portrait Lord Alton of Liverpool (CB)
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In that case, why do we not wait for that legislation and do it comprehensively, rather than put into law things to which there is so much opposition? Does the Minister also accept that, in 2015, a number of really positive changes were made to that Act in your Lordships’ House because the Government chose to listen?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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There were two questions there. Why now? I was going to come to that, because that is a point that the noble Lord made earlier. As to listening to your Lordships’ House, the Government always listen to what goes on in this House. They always listen but they may not always agree.

The noble Baroness, Lady Meacher, I think with some sympathy, referred to me as the “poor Minister” responsible for responding. I am poor in the sense that you do not take this job for the money, I can say that. I also cannot promise the meeting with the Home Secretary. What I can promise is that I will pass on what the noble Baroness said to the relevant people in the home department.

We have heard a number of arguments for removing Clauses 57 and 58 from the Bill. I will deal with those first, because I think that is really the head-on charge that has been put to me. I suggest that these clauses are important provisions to encourage disclosure of information at the earliest stage so we can identify victims and provide them with direct support as early as possible. The noble Lord, Lord Coaker, moving the amendment, asked why the provisions were necessary and quoted the former Prime Minister asking why artificial deadlines were required. The right reverend Prelate the Bishop of Bristol suggested that the clauses would stop people coming forward. Far from deterring victims, these clauses are intended to encourage genuine victims to come forward and get protection and support on the earliest possible occasion.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
- Hansard - - - Excerpts

I am sorry to interrupt the Minister, but how does he see what he is saying as compatible with the statutory guidance issued only this month?

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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Of course we have considered the statutory guidance, not least because it comes from the Home Department and was issued this month. With great respect, we do think they are compatible. We do not see any contradiction between the aims of the statutory guidance under the 2015 Act and what we are proposing here. As to who will be served with a notice, individuals who will be served with a slavery and trafficking information notice are those who have previously made a human rights or protection claim in respect of removal or refusal of entry. They are therefore potentially subject to removal action.

The noble Lords, Lord Coaker and Lord Alton, asked: why are we doing this? I think that was then refined to: why are we doing this now? That is pretty simple to state. As I have said, we want to identify genuine victims of modern slavery or trafficking within this group as quickly as possible so that they receive both protection from removal and access to the support given during the recovery period.

This may not be the best form of providing statistics, but the number of those detained in the UK following immigration offences in 2020 was obviously affected by the pandemic. However, even prior to this there was a clear rise in the number of referrals to the national referral mechanism, from 3%—501—in 2017 to 16%—1,767—in 2019. In 2019, only a small proportion, about 1%, of individuals detained in the UK following an immigration offence who made a national referral mechanism referral were returned. We published a report last year providing data on some of the concerns we are seeking to address through the Bill and outlining pressures in the system and where referrals of modern slavery are coming from. The reports are available on the government website but, to make it simpler, I will write to the noble Lords, Lord Coaker and Lord Alton, with a copy available, with the URL so they can find the relevant material.

I suggest it is right that we reduce the opportunities to misuse the system for immigration purposes and improve the efficiency of the processes, targeting resources where they are most needed to help victims recover from exploitation and rebuild their lives. We want to address concerns that some referrals are being made intentionally late in the process, to frustrate immigration action and divert resources away from legitimate claimants. It is not right that foreign criminals subject to deportation and those who have absolutely no right to remain in the UK can seek to delay their removal by waiting until the very last minute before raising new claims or putting in endless evidence or information relating to their status in the UK. So what Clauses 57 and 58 seek to do is on the one hand ensure that vulnerable victims receive appropriate and timely support, and on the other hand enable investigative and enforcement activities to take place with reasonable dispatch.

I should point out—this did not feature too much in the debate—that Clauses 57 and 58 are underpinned by access to legal advice, under Clauses 65 and 66, to help individuals understand whether they are a potential victim of modern slavery or human trafficking, and to support a referral into the national referral mechanism if that is the case. As I have said before, a constant theme, particularly in modern slavery measures within the Bill, is that decisions are made on a case-by-case basis, taking a needs-based approach. Therefore, turning to Amendments 151D, 152 and 155, it would be wrong in principle to create a carve-out for any one group of individuals, and to create a two-tiered system based either on age or the type of exploitation claimed. I am sure that this is not the intention of those moving the amendments, but, in the real world, which at some point we must think about, it could incentivise individuals to provide falsified information regarding their age or to put forward falsified referrals regarding timings or type of exploitation to delay removal action.

It was interesting, in the course of what was, with respect, a very forceful speech supporting his amendment, that the noble Lord, Lord Coaker, referred to 12 or 13 year-olds and not, for example, to a 17 and a half year-old. When it comes to children, if we define children as all under-18s, the approach that we want to take is to ensure that decision-makers have the flexibility to approach the claims of all children of different ages and maturities appropriately, and therefore I suggest that a blanket approach is inappropriate.

By introducing a statutory requirement to provide information before a specified date—we are not talking about neat files here—we hope to identify those victims at the earliest opportunity. Clauses 57 and 58 have safeguards built in, and I assure in particular the noble and learned Baroness, Lady Butler-Sloss, that, when considering the “reasonable grounds” decision, the decision-makers in the SCA are already well experienced in taking into account the specific vulnerabilities of children. I also point out to the Committee something that the noble and learned Baroness will know but other noble Lords may have forgotten: namely, that at the “reasonable grounds” stage the threshold is lower for children due to there being no requirement to show means of exploitation. That position will not change.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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I have been biting my tongue, but the Minister talked about the real world, and I do not think that this Government have any concept of what exists in the real world. The Minister has heard examples from the real world, given by noble Lords who understand what is going on. It is not appropriate for the Minister to talk about the real world when he is denying the stories that he has heard today.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I am not denying any stories. I set out statistics earlier on which were absolutely from the real world, and that is the issue that we are dealing with.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I apologise for interrupting, but the Minister has cited the statistics that he quoted earlier in answer to the question of why the Government were doing this. He talked about the number of referrals going from 3% to 16%. There could be three explanations for that increase: a rise in modern slavery; more cases being reported, even if modern slavery is not going up; or an increase in misuse. Bearing in mind that the majority of referrals to the national referral mechanism are made by the Home Office, and bearing in mind what he said about very few of the people who are referred being returned— I did not quite get the percentage—it sounds like the majority of those cases are not misuse. What we need are not the statistics that the Minister is relying on but the statistics on how many cases of misuse there are.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I have already said that I will write. I will copy everybody in, particularly the noble Lord, Lord Paddick, with the relevant data. We can have an interesting discussion about potential explanations for it, but what it shows is that there is a significant increase. The question I was seeking to meet was: why do something now, why not wait until a future Bill? The short answer is that we have a manifesto commitment to deal with immigration and asylum issues. It is right that we address all issues at this stage, but, as I have underlined, this is not the Government’s last word on modern slavery. Now I really want to make some progress or we will be here until 3 am again.

Lord Paddick Portrait Lord Paddick (LD)
- Hansard - - - Excerpts

Does the noble Lord not accept that 24% of modern slavery cases are UK nationals and have nothing to do with what the Conservative Party put in its manifesto?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am certainly willing to accept that a significant number of modern slavery victims are UK nationals. I do not know whether it is 24%, off the top of my head, but I am willing to have a look at that and come back to the noble Lord. I want to make some progress now, because I think we are going round the same points again and again.

Coming back to the noble and learned Baroness, Lady Butler-Sloss, all child potential victims of modern slavery in England and Wales will be provided with an independent child trafficking guardian to support them in navigating the immigration and national referral mechanism systems. Decision-makers are obviously trained in making those decisions, and the particular needs of children are an important part of that. In fact, I hope what I have just said responds also to some of the points made by the right reverend Prelate the Bishop of Bristol.

Moving to Amendment 153, as the noble Lords, Lord Cashman and Lord Paddick, also recognised, we understand that there will be cases where individuals are unable to comply with a deadline. There might be objective reasons, such as being under coercive control of an exploiter, or subjective ones, such as trauma, mental health issues or mental capacity, which can affect somebody’s ability to recall events. The clauses as drafted provide for this. As I have said on previous groups, we will set out in guidance the details of this approach, giving decision-makers the tools to recognise the effects of exploitation and trauma.

Where a person has raised evidence late, I suggest that it is right that decision-makers consider whether there is any merit in the reasons for that lateness. Credibility is not necessarily determinative of the case, should other factors indicate that the individual is a victim or potential victim of modern slavery. Amendment 154 asks what will be defined as a “good reason” for late disclosure. That has deliberately not been defined in the Bill, as setting out a list reduces flexibility. Decision-makers will be able to consider all relevant factors, which may include everything set out in the list in this amendment.

Clause 58 is underpinned by the provision of legal aid, as I have said. Amendment 172A would provide non-means-tested legal advice on all immigration matters to individuals who might not be victims of modern slavery. This amendment is a wide expansion of the legal aid scheme which is entirely uncosted and ignores the Government’s responsibility to use taxpayer funding wisely, in a way that obtains value for money. Such a wholesale expansion of the legal aid scheme would allow anyone claiming that they are a victim of modern slavery, but who might not be, to receive immigration advice with no financial eligibility checks in place. Legal aid for immigration matters is already available for victims of modern slavery who have a positive decision from the national referral mechanism, and the Bill does not change this. This includes ongoing support from the mechanism if required by the victim. Of course, the exceptional case funding scheme is available on top of that.

The intention of Clauses 65 and 66 is to bring advice on the national referral mechanism into scope from the outset. This builds on what is already available by helping unidentified victims who are within the immigration system to enter the mechanism. Without Clause 66, we will miss the opportunity to identify potential victims when they are receiving legal aid on their removal case.

I have two further short points. I listened very carefully to my noble friend Lord Henley, a member of the Joint Committee on Human Rights. Indeed, I appeared before that committee I think only last week. I have read the report carefully. It is on the Bench with me—it is a thumbed copy, not just a copy from the Royal Gallery. I hope I have set out the reasons for the Government’s approach, even if I apprehend that I may not have convinced him of their correctness.

Finally, I will ensure that the point raised by the noble Baroness, Lady Jones of Moulsecoomb, is passed on. My understanding—and I am newer here than she is—is that a decision on whether and when to repeat an Urgent Question taken in the Commons is for the usual channels. Even if I were a Home Office Minister, and I am not, I could not help on that further.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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I am impressed by the Minister’s argument that the intention is benevolent, but how does he square that with the opening point of the powerful speech of the noble and learned Baroness, Lady Butler-Sloss: that the whole voluntary sector is convinced that this is damaging and unhelpful? As for his criticism that Amendment 154 would limit flexibility, could he reread the amendment and note that the opening line includes the phrase

“include, but are not limited to”

in respect of the list of reasons? In other words, it deliberately retains flexibility.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I hope the noble Lord will forgive me if I reply to his points in reverse order. On the second, of course I appreciate that it is a non-exhaustive list. The point I was making is that even a non-exhaustive list is more prescriptive, when it comes to court, than absolute discretion. When you are arguing a case, even if the statute says A, B, C, D, E on a non-exhaustive basis, you are in greater trouble coming along with F, than if the discretion is free-standing. That is the point I was seeking to make.

Of course, my colleagues in the Home Office engage carefully with the commissioner and other entities in the voluntary sector. Ultimately, it is for the Government to decide what legislation to bring before the House.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, I want to deal with Urgent Questions again, because the Minister answered a different question from mine. I asked why it was advertised so late. He may not know this, but the Greens are excluded from the usual channels, so we would have no way of knowing.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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At this point, all I can do is pass that on, and I will.

Lord Paddick Portrait Lord Paddick (LD)
- Hansard - - - Excerpts

On Amendment 172A, I think the Minister said that victims of modern slavery already have access to legal advice, once the national referral mechanism has made an initial decision. If he looks at that amendment carefully, he will see it is entitled “pre-national referral mechanism advice”.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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The noble Lord is absolutely right, which is why I was making the point about it being a fundamental extension of the legal aid system, which is uncosted.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I thank everyone who has contributed to this incredibly important debate. It lasted just over an hour, so I will be brief to allow us to move on; otherwise, we could have a huge debate again in me responding to the Minister. I am sure many of the same points will, quite rightly, come up in the other groups. I hope noble Lords understand and accept that.

I will reiterate the point made by the noble and learned Baroness, Lady Butler-Sloss, and referred to by the noble Lord, Lord Kerr. It is interesting to note that, when a Government are in trouble, they defend themselves against everybody. You know when a Government are in difficulty because they resort to exactly the sort of defence—quite rightly; I have done it myself—that the Minister resorted to: “If only you understood the statistics and appreciated the difficulties”. That officialdom then rains on everything. When everybody else thinks you are wrong, you usually are. I gently suggest to the Government that they have got this wrong.

I am pleased the Minister was honest about this and I thank him for his response. It is clear the Government think the system is being abused and that people are claiming to be victims of modern slavery, either straightaway or late in the day. The Government are determined to shut down this loophole in the system. That is what is going on and it is why the danger that all of us raised about including modern slavery in an immigration Bill or the Nationality and Borders Bill—whatever you want to call it—sets a context that is difficult for modern slavery, to put it mildly.

All that I would say to the Minister is that even if the Government are right in saying that there is a problem here, by trying to deal with the issue as an immigration offence, which is essentially what they are doing, they are driving a coach and horses through the principles of the Modern Slavery Act. That is why people are so upset about it, so disappointed about it, so angry about it and so frustrated about it. They accept that the Government have to deal with immigration and that there are difficulties but this country has been proud of the way in which we deal with victims of modern slavery. Treating them, as they will be, as potential immigration offenders will change the dynamic. There are victims who we do not know and have no idea who they are. Children, whether they are 17 and a half or 13 are going to be impacted. As a consequence of what the Government are doing, innocent victims are going to be penalised in the name of tackling the problem of immigration. That is why people are so disappointed.

In conclusion, I say to the Minister that it must come to something when large numbers of the governing party as well as all the other parties that make up this House, including organisations of all faiths, are arraigned against this measure, along with all the voluntary sector, including the Government’s own voluntary organisation, the Salvation Army. I should have thought that that would have given the Government pause for thinking that maybe they have not got this quite right. Let us hope that between now and Report that they do so, otherwise I can foresee real problems on Report with respect to the clause and the other clauses in Part 5. I beg leave to withdraw the amendment.

Counter-Terrorism and Sentencing Bill

Lord Wolfson of Tredegar Excerpts
I am therefore sympathetic to this amendment, though I heard the noble Lord, Lord Carlile, say that he would not press it to a vote. However, the part of the argument that I have not heard from the Minister is why the alternative provisions would do a better job than the Parole Board, which is well understood by the wider judicial community as well as prisoners themselves. The outcomes of those existing processes would be justiciable and perceived as fairer, but I will listen with interest to what the Minister has to say.
Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I understand that the intent of this amendment, tabled by the noble Lord, Lord Carlile of Berriew, is to do two things: first, to introduce a role for the Parole Board where, otherwise, the changes in the Bill would make its role superfluous; and, secondly and at the same time, not to reintroduce eligibility for early discretionary release for this cohort.

I will begin by outlining briefly the effect of the amendment in a little more detail. It would replace Clause 27, which restricts early release for offenders convicted of a serious terrorism offence—that is, those listed in Schedule 2 to the Bill—who receive an extended determinate sentence, or EDS, or a new serious terrorism sentence so that they instead serve the full custodial term of their sentence. In its place, the amendment would insert a provision that would change the release provision for all terrorist offenders sentenced to an EDS. Further, and while I understand that this may not be the noble Lord’s intent, this amendment would also apply to those currently serving an EDS for a terrorist offence.

The replacement release provision in the noble Lord’s amendment would continue to restrict early release, but there is an important difference. At the end of the custodial term, the scheme set out in the amendment would instead refer the offender to the Parole Board. The Parole Board would then determine whether the offender represents a grave risk to the public and whether it is necessary for the protection of the public that the offender continues to be imprisoned. Under the scheme in the amendment, this consideration would continue annually until release was granted, or to the end of the extended licence period, when the offender would then be released, unconditionally, into the community. The effect would therefore be that, if release were not granted until the end of the extended licence period, there would be a cliff edge and the offender would at that point be released unconditionally into the community. There would be no period of supervision and reintegration. For the reasons set out by the noble Lord, Lord Marks of Henley-on-Thames, that is a matter of concern.

I have carefully considered the proposed changes, especially as they arise from an amendment from the noble Lord, Lord Carlile. I hope I may be permitted to say that contributions from him on this subject always merit the most careful consideration, and I can assure both him and the House that I have done so in this case. None the less, having undertaken that careful consideration, I must set out the Government’s view that the changes to the release provisions for the EDS, as set out in the amendment, would be contrary to safeguards set out in the European Convention on Human Rights and its case law governing sentencing and release. That case law is usefully summarised in a recent decision of the Supreme Court of this country in Brown v Parole Board for Scotland—we seem to be referring to Scottish cases everywhere today. It is reported at [2017] UKSC 69, in particular the discussions between paragraphs 49 and 55. While every decision of the Supreme Court is obviously a decision of a strong court, that court, for which the noble and learned Lord, Lord Reed, spoke, contained three former and current Presidents of the Supreme Court.

The reason the proposal would be contrary to the case law is that the EDS comprises two distinct parts. The first is a punitive component—namely, the custodial term—imposed for the length a judge considers commensurate with the seriousness of the offending. The second is a separate preventive element—namely, the extended licence—imposed to protect the public from the danger posed by other, future, yet to be determined serious offending. To that extent, we agree with the noble Lord, Lord Carlile, who was right to draw attention to the question of serious risk to the public. That is what the second part of the EDS does.

If the Government were to detain EDS prisoners into their extended licence period for reasons related to their initial offending, that detention would be contrary to the nature and intended purpose of the community supervision component of the sentence, and contrary to the court’s order imposing the EDS. As the noble and learned Lord, Lord Reed, for the Supreme Court, put it in the Brown case,

“the purpose of detention during the extension period is materially different from that of a determinate sentence.”

The noble Lord, Lord Carlile, acknowledged that this amendment would require further development, either in the form of a new sentence or by further alteration to the existing EDS regime. I am grateful for that acceptance. However, I must state that the Government would not support such a proposal, because there is no need for such a new sentence. The EDS and the new serious terrorism sentence are deliberately structured to do two things: to provide punishment and, separately, to aid public protection and reintegration through the licence period. We have no desire to change this overall approach or, to use the metaphor of the noble Lord, Lord Carlile, to change the architecture.

For those who are not dangerous, the sentence for offenders of particular concern sufficiently caters for release with a role for the Parole Board and yet without the risk of an unsupervised cliff edge, which the amendment would introduce. I understand, as the noble Lord, Lord Carlile, noted, that the amendment is born of a desire to introduce a role for the Parole Board. But there is no role for the Parole Board here because it is not necessary. There is no early release and no parole so, accordingly, there is no role for the Parole Board. That is, therefore, my answer to the question put to me by the noble Lord, Lord Marks, who asked why there is no role for the Parole Board. It is for the reasons I have just given. While I suspect that my answer may not leave him persuaded, I hope it means that he is no longer perplexed.

The noble Lord, Lord Ponsonby, asked me whether we are saying that the alternative can do a better job than the Parole Board. I accept that, as the premise behind that question would admit, some Peers consider the Parole Board the only qualified body to deal with the specialised nature of setting licence conditions for terrorist offenders. But in answer to the noble Lord, Lord Ponsonby, I must respectfully reject that approach. The reason the Parole Board is responsible for setting licence conditions when it directs the prisoner’s release is that that is part and parcel of the Parole Board’s decision that the offender can be safely released and managed in the community. The Parole Board decides that the offender can be released and, as part of that, decides the licence conditions that will govern such release.

However, with an EDS for a serious terrorism offence and the serious terrorism sentence, there is no provision for early release before the end of the custodial period. The corollary of that proposition is that release at the end of the custodial period is automatic. Where release is automatic, there is no reason why the Parole Board specifically should consider licence conditions.

Furthermore, offenders will be subject to management under MAPPA—Multi Agency Public Protection Arrangements—through which the police and the probation and prison services work with other agencies to manage the risks posed by offenders living in the community in order to protect the public. In cases under the Terrorism Act 2000—TACT—and TACT-connected cases, that involves the probation service, the releasing prison, counterterrorism police, security services, the Joint Extremism Unit of HMPPS, and social services.

With the creation of the national security division of the National Probation Service, we will see even greater specialism in making such recommendations. That ensures that professionals with a detailed knowledge of the offender are involved in identifying the licence conditions which are necessary and appropriate. The key point is that that happens regardless of whether the final decision-maker on setting the licence is the Parole Board or HMPPS—the governor. While ultimately the board or the governor makes the decision, that decision is always directly informed by those with intelligence of and expertise in managing the offender. I therefore assure the noble Lord, Lord Carlile, that the process is no less rigorous and the outcomes are no different.

The noble Lord, Lord Carlile, asked a specific question about our discussions with the Parole Board. We have shared the Bill with the Parole Board and discussed its implications with it, but there has not been a formal consultation, if that is what the noble Lord was driving at in his question.

For those reasons, which I hope I have explained clearly and fairly, I remain of the view that there is no role for the Parole Board where there is no consideration of early release. That point, combined with the issues I have explained around the legality of this amendment from an ECHR standpoint, leads me to consider this amendment unnecessary. I therefore respectfully urge the noble Lord, Lord Carlile, to withdraw it. Of course, I am happy to continue our conversations with him about this matter, as I am sure we will continue to benefit from an exchange of views about other matters in the Bill also.

Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB) [V]
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My Lords, I am grateful to all who have spoken in this debate, to the noble Lords, Lord Marks and Lord Ponsonby, for their broad support for what I have suggested, and to the noble Lord, Lord Wolfson of Tredegar, for his detailed response.

When I was at school, I had a teacher who taught us about different forms of argument, one of which is entitled “argumentum ad maiorem”—argument using a greater authority. In those days, I suppose it was something like “Because Sir Winston Churchill said something, it must be right.” The Minister’s argumentum ad maiorem was about the case of Brown v the Parole Board for Scotland, which, it will not surprise your Lordships to know, I have read.

I do not propose to embark on and bore your Lordships with a legal moot about that case. I say simply that I respectfully do not agree with the noble Lord, Lord Wolfson, despite his eminence as a lawyer, about the effect of that case on my proposal. I believe that my proposal, because of the change of the architecture that I suggested, including the fact that the sentencing judge would clearly refer to the potential extension provisions at the time of sentence, would come within the judgment of Brown v the Parole Board for Scotland.

--- Later in debate ---
Moved by
26: Clause 48, page 37, line 13, at end insert—
“(4A) Nothing in subsections (1) to (4) limits the extent within the United Kingdom of any provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006. (4B) Subsections (1) and (2) of section 384 of the Armed Forces Act 2006 (extent outside the United Kingdom) apply to the armed forces provisions as those subsections apply to the provisions of that Act.(4C) The following are “armed forces provisions”—(a) a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006;(b) an amendment, modification or repeal made by or under this Act of—(i) a provision of or made under the Armed Forces Act 2006,(ii) a provision that amends, modifies or repeals a provision of, or made under, that Act, or(iii) any other provision, so far as the provision is applied (by whatever words) by or under that Act.”Member’s explanatory statement
This amendment clarifies that provisions of the Bill which have a limited extent within the United Kingdom (such as amendments of the Sentencing Code) have UK-wide extent so far as they are applied by the Armed Forces Act 2006. It also provides for the provisions of the Bill that relate to the armed forces to extend, or be extended, outside the United Kingdom in the same way as the Armed Forces Act 2006.
Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar
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My Lords, I apologise for the short break in proceedings while I came back to my place. I am afraid that the convention of not moving while the Chair is standing, and social distancing, do not go too well together.

This rather technical amendment to Clause 48 clarifies that the provisions of the Bill have UK-wide extent in so far as they are applied by the Armed Forces Act 2006. That is the burden of proposed new subsection (4A). The amendment also rectifies an oversight in the original drafting of the Bill, to make Section 384 of the Armed Forces Act 2006 apply to provisions in the Bill if they amend or modify the Act, and when they are applied by that Act. This means that they will extend to the Isle of Man and the British Overseas Territories, except Gibraltar, and can be extended to the Crown dependencies. That is the burden of proposed new subsection (4B). That ensures that the same version of the Armed Forces Act 2006 will be in force in all the jurisdictions to which that Act extends.

I apologise for the fact that this amendment has not been brought forward until now. That was an oversight, but I hope that noble Lords will accept that it was an understandable one, given the number of issues that the Bill deals with, and their frequent complexity. The interrelationship between sentencing provisions and armed services issues adds a further element of complexity. The amendment itself, as I have said, does those two things, in proposed new subsections (4A) and (4B). I beg to move.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
- Hansard - - - Excerpts

My Lords, Clause 48 deals with the extent of the Bill. It provides that

“A provision of this Act which amends, repeals or revokes an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.”


Under subsection (2), provisions that do not amend, repeal or revoke an existing enactment extend to all four nations—England, Wales, Scotland and Northern Ireland—save for two limited exceptions, in that Clauses 21(2) and 44(2) are of a limited nature, referring to retrospectivity.

It is not easy to extract the purpose of Amendment 26. Someone in the Ministry of Justice has concluded that there are problems under the Armed Forces Act 2006. Proposed new subsection (4A) suggests that, in the context of jurisdiction under the Armed Forces Act 2006, all the provisions of the Bill extend to all four countries. This is so even if an amendment repeals or revokes a provision of an existing Act that does not have that extent.

Under proposed new subsection (4B), the provisions of the Act extend outside the United Kingdom to the extent set out in Section 384(1) and (2) of the Armed Forces Act. That section applies to the Channel Islands, the Isle of Man and overseas territories excluding Gibraltar. British Overseas Territories do not include Cyprus, Belize or Gibraltar itself, which is specifically excluded. Those are all venues where I, as chairman of the Association of Military Court Advocates, know that courts martial take place.

Those are three places, and I am sure there are more, where courts martial take place—not to mention Germany, where the facilities have ceased. Courts martial can, of course, take place anywhere in the world, if properly constituted, and if charges for service offences are brought against anyone who is subject to the Armed Forces Act.

Terrorism exists outside the overseas territories. I would very much welcome clarification as to what happens if a court martial is held outside the United Kingdom, but not within those overseas territories to which the Armed Forces Act applies. I cannot help feeling that I am missing something, but the statement attached to the amendment is not at all clear—even though it states that the purpose of the amendment is to clarify the position. I look forward to the Minister doing so.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab) [V]
- Hansard - - - Excerpts

I endorse the question so clearly put by the noble Lord, Lord Thomas of Gresford. Despite the clear explanation given by the noble Lord, Lord Wolfson of Tredegar, I am still struggling with this amendment. Can he tell us the sort of problem that proposed new subsection (4A), which Amendment 26 seeks to insert into the Bill, tries to deal with? What is the lack of clarity with which he was concerned? Can he also indicate whether there are any implied provisions put into the Armed Forces Act by this Bill?

Proposed new subsection (4C)(a) specifies:

“a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006”.

Can he indicate what sort of provision that is aimed at? I would find it really helpful, in relation to proposed new subsections (4A) and (4B), to have an example of a problem that these two provisions would solve.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am grateful to the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Falconer of Thoroton, for their contributions and questions. The position, so far as I can assist the House now, is that the amendment ensures that the provisions of the Bill which amend, modify or are applied by the Armed Forces Act 2006 have the same extent as that Act. That Act extends to the UK, Isle of Man, and British Overseas Territories, excluding Gibraltar, and can be extended to the Crown dependencies.

The Armed Forces Act 2006 is the main piece of primary legislation that establishes a service justice system. It uses a modified form of sentencing law of England and Wales for sentences imposed by the court martial, as the noble Lord, Lord Thomas, stated. The burden of the amendment is to ensure that the Armed Forces provisions in the Bill have the same extent as the Armed Forces Act 2006. This would ensure, therefore, that there is a correlation of the area over which the provisions apply.

On the specific question from the noble Lord, Lord Thomas, on what would happen outside the territories covered by the Armed Forces Act, I am conscious that I would probably be straying into MoD territory rather than MoJ territory. I hope that the noble Lord, Lord Thomas, will allow me to write to him on that so he gets an accurate and complete answer.

As to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, on whether there is an implication in the Bill that is caught by proposed new subsection (4C), perhaps I can send him a letter on that, rather than risk getting the answer wrong, I am tempted to say that these are standard words used in Acts of Parliament about what is implied, but I understand the burden of his question and, if he will permit me, will send him a written response. I hope that I have responded to the points put to me and I commend this amendment to the House.

Amendment 26 agreed.
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Moved by
27: Schedule 13, page 121, line 4, leave out from “section” to “for” in line 5 and insert “1 (release of short-term, long-term and life prisoners)—
(a) in subsection (3A),”Member’s explanatory statement
This is consequential on the amendment at page 121, line 5.