Policing and Crime Bill

Debate between Viscount Hailsham and Lord Carlile of Berriew

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Viscount Hailsham]

My Lords, I am conscious that your Lordships want to vote on Amendment 187, so I shall be brief, but I have to say that this proposal is, to my way of thinking, one of the most unjust that I have heard in your Lordships’ House for some time. It is worth identifying what it says. I shall come to the proviso in a moment, but what it says that somebody who is accused of rape is not to know the name of the accuser—the complainant. For that matter, somebody who is accused of actual bodily harm or grievous bodily harm is not to know the name of the accuser or of the witnesses. I ask rhetorically: how on earth can a defendant or his representatives prepare his case for trial without knowing the name of the accuser or the witnesses? After all, they may not have been there. They may be notorious liars. There may be lots of other reasons to distrust their integrity.

The substantive clause here precludes the police from giving the name of the victim or the witnesses to the accused person. That is curiously reminiscent of the procedure underlying lettres de cachet in pre-revolutionary France, as described in A Tale of Two Cities. Let us look at the proviso, because it needs a bit of probing. The proviso in subsection 1(b) of the proposed new clause is so far as,

“non-disclosure would not impact on … a new trial”.

Who is to judge whether it impacts on a fair trial? I can tell noble Lords from the language of the proposed new clause that it is to be the police or the Crown Prosecution Service. So the police or the Crown Prosecution Service, who are party to the procedure, who are making the allegations, will judge whether it is fair to disclose the identity of the victim or the witness. How can that possibly be fair? What procedure is there in the proposed new clause for the accused person to challenge that determination? There is none at all.

We are told, “Ah, the judge will let it in”, but the judge cannot when there is an absolute prohibition. There is no procedure here whereby the decision of the police officer or the Crown Prosecution Service can be challenged. Probing a little further, what about police statements? I am sure my noble friend knows full well that police statements have to be served on the defendant prior to trial so that they can prepare and understand their case. If the identity of the witness or the victim has to be redacted out of the statements, what possible purpose is there in serving the statements at all? One merely has to identify these things to see that this would be struck down, certainly by the courts. It is a clear contravention of the provisions in the convention now in domestic law in favour of a fair trial.

Incidentally, on proposed new subsection 1(c), regarding the protection of people, bail conditions can do that. There may be a case for strengthening bail conditions but there is absolutely no case for introducing a measure that will do a profound injustice in our courts. I hope my noble friend the Minister will give a robust response to this.

[Lord Carlile of Berriew]

Before the noble Viscount sits down, is the point not that the complainant may say that the person who allegedly assaulted him or her is a stranger but may have an oblique motive for so saying? How is the defendant therefore able to defend himself or herself without being able to know who the accuser is? It is a palpable injustice which was not covered, I regret, by the passionate speech by the noble Lord, Lord Wigley, which omitted that crucial point.

[Viscount Hailsham]

I could not agree more with the noble Lord. I agree with him as I agreed with him on the previous debate. We are dealing here with the possibility of profound injustice and we should guard against it.

Investigatory Powers Bill

Debate between Viscount Hailsham and Lord Carlile of Berriew

Wednesday 13th July 2016 Lords Chamber

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

My Lords, I confess to taking a rather different view of this. This is a question of judicial oversight; it is not in principle judicial initial decision-making. I am perhaps a little out of date, although I have been at pains to keep up to date with developments, and as the noble Baroness and the noble Viscount have already recognised, there have been significant developments. This is not just about process; it is not what used to be called Wednesbury review, or perversity or irrationality. Nowadays it has developed into an appropriately flexible standard of oversight. Even without the explicit requirements to look at the necessity, the proportionality and the requirements of the human right to privacy, as there are here, there is in the modern concept of judicial review an ample opportunity.

In recent cases—I am looking at the Judicial Review publication of March of this year, so it is fairly up to date—the noble and learned Lord, Lord Mance, in one of these recent cases such as Kennedy, Pham, and so forth, said that it was,

“improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or”,

the EU law principle of proportionality. Therefore, even without the explicit requirement to look at proportionality, as there is in respect of all these oversight obligations, there is here an appropriate degree of flexibility.

You want an element of flexibility—you want the judge plainly to be able to take account of the nature of the underlying decision he is reviewing and of the extent to which there has been an invasion of privacy, against which this judicial oversight is designed to protect the citizen. This matter has been thrashed out; if you read the two days of debate in the other place, you see that there was some appropriate degree of give. However, I respectfully suggest that the oversight as now provided for is, if not more than adequate, certainly adequate.

[Lord Carlile of Berriew (LD)]

My Lords, we first have to decide what we want. Do we want judicial decision-making on these warrants and similar provisions, or the judges to review the legality of ministerial decisions? In my view, as a matter of constitutional principle, we do not want the judges to make the primary decisions but to review the legality of those decisions. I agree entirely with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this regard.

For the nerds among us, there is a regular publication called the Administrative Court Digest—the AC digest—which I read with enthusiasm every time I receive it. It is extremely interesting, because it demonstrates that judicial review is not some kind of dry, legalistic test of precise processes followed by government and government officials but a wide-ranging test of legality. If the factual decisions that have been reached are so wrong that they should properly be regarded as unlawful, they are judicially reviewed as unlawful.

[Viscount Hailsham]

They have to be very wrong before such a conclusion can be arrived at.

[Lord Carlile of Berriew]

With great respect to a respected lawyer, that is not correct. If the decision is disproportionate, these days it is subject to judicial review. If the noble Viscount would perhaps take his weekend to read through the AC digest, he would find that in example after example, relating to every department of state. I am therefore content with what is offered by the Government, and so, importantly, is David Anderson, the current Independent Reviewer of Terrorism Legislation. I hope that we will proceed fairly quickly beyond this issue.

Immigration Bill

Debate between Viscount Hailsham and Lord Carlile of Berriew

Monday 21st March 2016 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I take a different view from the noble Lord who has just spoken, although I have a great deal of sympathy for the underlying sentiments of the noble Lord, Lord Alton, for example—I agree with much of what he and the right reverend Prelate said. But there is a difference between making an obligation mandatory, as is contemplated by the amendment, and exercising the discretion of government. There may very well be a good case for the Government to admit much larger numbers of unaccompanied children than is provided for under the existing scheme, and I would have no objection at all to that number being 3,000 or more. However, I object to it being mandatory, because it deprives the Government of any discretion.

The House needs to keep two things in mind. First, if you admit children who are not accompanied at the moment of admission, you expose the country to a whole range of further applications by those who are related to them; and if you make it mandatory, you have deprived yourself of the ability to regulate that flow. The second, and different, point is the pull factor. The noble Lord, Lord Dubs, for example, is not right to disregard that. We have seen the consequences of Chancellor Merkel’s statement, which resulted in a very great pull factor. My own fear is that if the House made this obligation mandatory, that would encourage people to send their children from where they now are into Europe, unaccompanied, in the hope that they would take advantage either of this provision, if it is carried, or of a future provision which they might envisage being carried forward. I am not against the concepts and arguments which have been very eloquently expressed by noble Lords, but I am against making it mandatory.

[Lord Carlile of Berriew (LD)]

My Lords, I join the noble Lord, Lord Dubs, in sharing the feeling behind this amendment, and I congratulate him on moving it. He is one of many distinguished examples of people who have contributed a lot to this country since they arrived here as part of the Kindertransport.

I want, if I may, to mention my own sister. She was born in 1937 in southern Poland and is my only sibling—in fact, she is my half-sibling; her mother died in Auschwitz after four and a half years as a prisoner there, but that difference in parentage has never affected us. I am afraid that I frequently telephone her and remind her how much older she is than me. Over the period of our lives together she has frequently reminded me of what she suffered as a child who did not have the opportunity to take advantage of the Kindertransport. Throughout the Second World War, from the time her mother was taken by the Nazis, she fled from persecution. She moved from place to place, and although people who had feelings for her tried to protect her, she did not have that carapace of parental protection which most of us have enjoyed and which to a great extent was enjoyed by the Kindertransport children. A few years ago she was able to have published her memoirs of the time between her third birthday and the end of the war, such as she remembers it. It is there for all who wish to read it and it is a searing story.

If by this amendment we can save one child from the sort of experience that my sister went through or save the children of one family from the feeling of being lost in an uncaring world, at no real disadvantage to this country, we should do it. Nothing in this amendment would disadvantage this country. If the Government wish to carry out a cost-benefit analysis, they need only to carry out a similar cost-benefit analysis of the Kindertransport children. These 3,000 children would be a jewel in this country’s crown and would appreciate what this country had done for them, like my sister appreciated what it eventually did for her when she was able to come here as an eight year-old in 1946.

Immigration Bill

Debate between Viscount Hailsham and Lord Carlile of Berriew

Monday 21st March 2016 Lords Chamber

[Viscount Hailsham]

My Lords, I find myself in great sympathy with what the noble Lord, Lord Pannick, has just said. If this were a general debate about genocide, I would find myself in total agreement with what has been said by all noble Lords who have contributed; there have been some very remarkable speeches. But it is not. We are actually talking about legislation and we have to ask ourselves the serious question: does what this House is contemplating by way of legislation make legal sense? It is there that I part from those who are advocating this amendment.

I want to concentrate briefly on subsection (1) of the proposed new clause because there are three points that I would like to make about it. First, we are not in the business of talking about groups, although the noble Baroness, Lady Nicholson, did talk about groups. The question is whether an individual belongs to a group, and that involves adjudication, a decision. It is made in the context where there is an enormous amount of scope, and motive too, for misrepresentation. It is sometimes very difficult to tell the difference between a Tajik and an Uzbek or, for that matter, between an Alawite, a Sunni and a Shia. They may all have reason for misrepresenting their status. To put the test in the way that it is expressed in subsection (1) will open up an enormous amount of judicial argument.

The second point is slightly different. In the second line of the subsection is the phrase “in the place”—not in the country, but in the place. The truth is that in a country like Iraq, a Shia may be unsafe in a particular area but can move to another area where he or she is safe. Simply to have the test of whether the conditions exist in the place where a person for a moment in time happens to be resident is, I think, to distort what one really seeks to do.

The last point I want to make is that subsection (1) creates presumptions of entitlement. I believe that presumption should depend on individual adjudication, not on class presumption. This amendment would create a class presumption with which I am bound to say I am extremely uneasy. Therefore while I have enormous sympathy with the points that have been made, and I do not wish in any way to undermine the fervour with which people have spoken, we are in the business of asking ourselves whether particular pieces of legislation which we are being asked to authorise make sense.

[Lord Carlile of Berriew (LD)]

My Lords, it gives me great pleasure to applaud the noble Lord, Lord Alton, for bringing this amendment back to your Lordships’ House in an improved form. I do not want this to turn into a lawyers’ fest or to give your Lordships too much pleasure in knowing that the lawyers may disagree about the matters that have just been referred to, but I would remind the House that the noble Lord, Lord Alton, told us earlier that the amendment followed interventions at an earlier stage in the passage of this Bill by the noble and learned Lords, Lord Hope of Craighead and Lord Judge. Both are former Supreme Court judges, one the former Lord Chief Justice and the other the former Deputy President of the Supreme Court.

I do not disagree in principle with what has just been said by the noble Lord, Lord Pannick, and the noble Viscount. However, we must remember that the power to pass law rests upon Parliament. This is not a court where we act upon precedent. If Parliament wishes to include a judge’s decision in the determination of a matter of law, it is open to Parliament to do so. Let us not pretend that the Government—particularly this Government—do not send for the judges when they are in an awkward position in any event. We know that that is all too common and currently being done with the most controversial Bill before these Houses: the Investigatory Powers Bill.

I therefore suggest to your Lordships that while we of course listened with enormous respect to the two noble Lords who just spoke, nevertheless what they say does not negate the merits of the debate that we have been hearing. Indeed, we have heard some very eloquent speeches dealing with those merits: for example, the speeches of the noble Lord, Lord Forsyth, and of the noble Baroness, Lady Kennedy of The Shaws, who had an excellent article in the Guardian this morning, setting out in principle what everybody on my side of the debate might say.

I do not want to give a catalogue of the events that give rise to this debate; we heard from my noble friend Lady Nicholson in some detail. I applaud, as I am sure we all do, the extraordinary work that she has done with the charity AMAR, of which she is the chairman and founder, which has helped so many, particularly young women, affected by genocide, especially in the Middle East. She deserves great praise for that. Indeed, she and the noble Baroness, Lady Cox, are responsible for bringing these very important and painful issues to the attention not just of the House, but of the country much more widely than the political class represented here and in another place.

I simply say this to your Lordships: there is no more arrogant crime than the crime of genocide. Genocide defies all decent religious standards, albeit sometimes in the heretical pretence of religion. Genocide offends all decent secular standards. I know of no secular state that would allow any of the horrendous practices described in the debate. Genocide rejects the proposition that there should be even any limits to the actions and cruelties committed in war. Genocide diminishes the dignity of the human race, quite simply. Surely Parliaments such as this should recognise the suffering of victims of genocide, and not merely by wringing our hands with rhetoric about those victims. Where else have they to turn to if not to Parliaments and to Governments in countries such as ours? Why are we not making the sorts of declarations that have been made, as I understand it, by the French Government and very clearly by the American Secretary of State?

The designation of crimes as “genocide” sends out a clear message, and it is not an unimportant one: it is a deterrent. Designation of genocide sends out the message that those who commit the act and are identified will one day be brought before international courts and punished for their crimes against the rest of the human race. Designation of genocide by Governments such as ours also sends out a warning to those who might be inclined to commit genocide that they will be pursued to the end of the days—to the end of their lives if necessary, when they are old and hiding from their responsibilities, as happened, for example, with the Nazi genocide.

I heard earlier in the evening—I hope that I am wrong—that Her Majesty’s Official Opposition’s position was to sit on its hands in this debate. I hope that that shameful proposition is not correct. I hope that we will not have a situation in which the party that introduced the Human Rights Act 1998 into our law will chicken out of an official vote on this amendment.

We carry out a great responsibility this evening. I hope that we will do so in a spirit that recognises the challenge that genocide presents to humankind.