Grand Committee

Tuesday 12th December 2023 Grand Committee

Tuesday 12 December 2023

Arrangement of Business

Tuesday 12th December 2023 Grand Committee

Announcement

15:45

[The Deputy Chairman of Committees (Viscount Stansgate) (Lab)]

My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bell rings and resume after 10 minutes.

Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023

Tuesday 12th December 2023 Grand Committee

Considered in Grand Committee

15:45

Moved by

[Baroness Swinburne]

That the Grand Committee do consider the Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee

[Baroness Swinburne (Con)]

My Lords, these regulations, which were laid before the House on 7 November 2023, will be made under the powers provided by the Retained EU Law (Revocation and Reform) Act 2023, known as the retained EU law Act. They are concerned with the definition of “fundamental rights and freedoms” in the data protection legislation and making sure we continue to have a meaningful definition beyond the end of the year, when the retained EU law Act takes effect.

In several areas, the data protection legislation—specifically the Data Protection Act 2018 and the UK general data protection regulation, which I will refer to as the UK GDPR from now on—requires the Government, the Information Commissioner and organisations using personal data to consider people’s “fundamental rights and freedoms” in certain situations. For example, Ministers must consider such rights and freedoms when creating new exemptions or permissions for the use of people’s special category data, and data controllers must consider them when relying on the “legitimate interests” lawful ground for processing under Article 6(1)(f) of the UK GDPR. It is vital that, in circumstances such as this, the rights of individuals continue to be carefully considered and protected.

Prior to EU exit, references to fundamental rights and freedoms in the data protection legislation were taken to mean rights described in the EU Charter of Fundamental Rights—which I will refer to as the charter. Following the European Union (Withdrawal) Act 2018, some of these rights were retained by Section 4 of that Act. Given that Section 4 of the European Union (Withdrawal) Act will be repealed at the end of 2023 by the retained EU law Act 2023, action is needed now via this statutory instrument to replace the definition of “fundamental rights and freedoms”. Without action, there would be a lack of clarity about what these references mean. This could cause significant difficulties for organisations trying to apply the data protection legislation, risking inconsistent approaches, legal uncertainty and insufficient protection of data subjects’ rights.

That is why, through the draft regulations, the Government are clarifying that references to fundamental rights and freedoms in the data protection legislation mean rights under the European Convention on Human Rights, known as the ECHR, as defined by the Human Rights Act 1998. By doing this, the Government are ensuring that there is a clear, legally meaningful definition to rely on. This will provide consistency and certainty for organisations which are subject to data protection legislation, as well as continued protection for people’s rights. It is important to note that these regulations themselves do not remove any EU law rights; it is the European Union (Withdrawal) Act and the retained EU law Act that do that. These regulations are simply designed to replace references to EU law that would become meaningless at the end of this year.

I thank the Secondary Legislation Scrutiny Committee and European Statutory Instruments Committee for their views on these regulations. I have noted their concerns that rights protected by domestic law under the Human Rights Act might not provide the same level of protection as rights protected by EU law under the Charter of Fundamental Rights of the European Union. The matter of protection of people’s rights is of utmost importance, and I take this opportunity to reassure the Committee that the changes we are making via these regulations will not significantly affect the way the data protection framework works or indeed erode the protections it affords to people. Prior to EU exit, EU law rights protected by the charter included, for example, the right to respect for private and family life, the right to protection of personal data and the right to freedom of expression. The new definition will be based on rights protected by the ECHR, which includes the right to respect for private and family life and the right to freedom of expression.

The committee and others have raised a concern that the regulations remove reference to the specific right to data protection that was a feature of the charter. It is true that there is no such free-standing right under the ECHR. However, case law on this issue shows that data protection forms part of the protection offered by the right to respect for private and family life in Article 8 of the ECHR. It is further protected by our data protection legislation, which provides a comprehensive set of rules for organisations to follow and rights for people in relation to use of their data. The stand-alone right to protection of personal data was a feature of EU law and its removal is a result of EU exit legislation, including the retained EU law Act, rather than these regulations, which merely replace outdated terminology to recognise the new position.

I inform the Committee that we have formally consulted the Information Commissioner’s Office on the drafting of these regulations, and it recognises why the data protection legislation cannot continue to refer to rights that have been repealed. I hope that noble Lords will join me in supporting the draft regulations. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I welcome the Minister to this crowded box-office occasion—over the years it has been for aficionados, by and large.

I thank her for setting out the purpose of these regulations. Originally, they were to be approved by the negative procedure. It is to the great credit of the Secondary Legislation Scrutiny Committee that, in its 53rd report, it recommended an upgrade of the instrument to the affirmative procedure because of concerns about a potential reduction in rights protection. I heard what the Minister said in her introduction.

In its report, the committee quoted the Department for Science, Innovation and Technology, which stated that

“the impact on organisations and individuals as a result of the proposed changes was expected ‘to be minimal’”,

and that the changes

“replicate the current position ‘as far as possible’, but it was unable to rule out entirely potential differences in the rights and freedoms”.

In those circumstances, I need to thank the Minister and the Government for bringing back these draft regulations for affirmative approval—in other words, for listening to the committee.

However, our conclusion is that the regulations fail to contain damaging uncertainty and inconsistency in this area, which is exactly what concerned the SLSC. I am afraid it will be clear from our debate next week on the Data Protection and Digital Information Bill, as it was when we recently debated the Digital Government (Disclosure of Information) (Identity Verification Services) Regulations 2023, that data is a really weak spot for this Government—as if they needed any more.

I am afraid that it is clear that these regulations by themselves are insufficient to stabilise the UK’s data protection frameworks once what has been called the tsunami of legal uncertainty unleashed by the retained EU law Act—REULA—engulfs us on 31 December 2023. The Minister lightly skipped over that. When the UK stopped being subject to the EU treaties at the end of 2020, the European Union (Withdrawal) Act 2018—EUWA—saved the rights and obligations which applied in domestic law as a result of the UK’s EU membership. This meant, in essence, that the EU GDPR became the UK GDPR. The Data Protection Act 2018 remained on the statute book. The rights and obligations became part of retained EU law—the vast body of law saved from the EU legal framework on the UK’s departure. Retained EU law was to be interpreted as it had been while the UK was an EU member state. This created continuity and certainty as to what the law meant.

The Court of Justice of the European Union—CJEU—case law from before the end of 2020 was also preserved in domestic law, as was domestic case law interpreting EU rights and obligations. The general principles of EU law, which include fundamental rights and the protection of personal data, were retained as an aid to the interpretation of our data protection frameworks. The principle of the supremacy of EU law was preserved. This meant that, in a conflict between the provisions in the UK GDPR and the DPA 2018, the UK GDPR took precedence. This was confirmed in the case of R (on the application of the Open Rights Group) v the Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport. In this case, the retained principle of supremacy was relied on by the Court of Appeal to find that the overly broad exemption in the DPA 2018 from data subject rights in an immigration context was unlawful. Yesterday, the Court of Appeal ruled that the Government must amend the immigration exemption in Schedule 2 to the Data Protection Act because it is incompatible with Article 23 of the UK GDPR. This sort of argument will no longer be possible after the end of this month because the exemptions in Schedule 2 to the DPA will take precedence over the UK GDPR.

The EU Charter of Fundamental Rights was not saved into the domestic statute book. The Government’s view was that this made no substantive difference because the charter simply listed the rights found in EU law, so because the rights and obligations listed in the charter were being saved into domestic law through the European Union (Withdrawal) Act, no rights would be lost. Further, the EUWA clarified that retained case law which referred to rights in the charter should be read as referring to the underlying rights and obligations listed in the charter. This ensured that case law which referred to the charter would still be applicable.

Nothing in EUWA prevented Parliament legislating to change the UK GDPR and the DPA 2018. Indeed, the White Paper on the EUWA stated that, after the UK’s exit from the EU:

“It will then be for democratically elected representatives in the UK to decide on any changes to that law, after full scrutiny and proper debate”.


As we will be discussing next Tuesday at its Second Reading, the UK’s data protection frameworks are being changed through the vehicle of the Data Protection and Digital Information Bill. As I have indicated to the Minister, the noble Viscount, Lord Camrose, these Benches do not welcome those changes and regard them as dilutions of data subject rights.

However, there are also fundamental changes to the UK’s statute book being made at the end of this year through the REULA, which will sweep away the retained EU general principles, including fundamental rights and the requirement to interpret retained EU law in accordance with those principles. Further, the principle of the supremacy of EU law is being deleted. The default position is that domestic law whenever enacted will trump the law which came from the EU.

Changes introduced by REULA are bound to create legal uncertainty. In terms of the UK GDPR and the DPA 2018, EU fundamental rights are the underpinning foundation of the law. If they are simply deleted—the default position under REULA—the UK GDPR and the Data Protection Act 2018 will become more difficult to interpret. This is, of course, why the regulations have been introduced. They are intended to ensure that, as the Minister said, references to fundamental rights and freedoms in the UK GDPR and the DPA 2018 are read as references to fundamental rights and freedoms as set out in the European Convention on Human Rights as implemented through the Human Rights Act 1998.

On one level, this makes sense. Article 8 of the EU’s Charter of Fundamental Rights—the right to the protection of personal data—is based on Article 8 of the ECHR on the right to private and family life, but it is not certain that the rights under Article 8 of the ECHR provide exactly the same protections as the right to data protection in the EU legal order. First, this is because the ECHR has no specific fundamental right to the protection of personal data. In the case of R (Davis & Watson) v Secretary of State for the Home Department, the High Court held that Article 8 of the charter goes further and is more specific than Article 8 of the ECHR. Secondly, the charter contains general provisions explaining how the relevant rights should be interpreted, and Article 52 of the charter confirms that, when rights in the charter correspond to the rights in the ECHR, the meaning and scope of those rights should be the same as in the ECHR, although the EU is not prevented from providing more extensive protections. Whether EU fundamental rights provided more extensive protection than those under the ECHR will be tested in the courts over the coming years, but there is likely to be uncertainty in relation to this point from the end of this year.

16:00

Another area of significant uncertainty will be how, if and to what extent CJEU case law still applies when interpreting the UK GDPR and the DPA 2018. Much of the CJEU case law on data protection references EU fundamental rights, as set out in the charter. If EU fundamental rights have been deleted, it is not clear that the case law still applies. Again, we will have to wait for cases to reach the courts to understand whether and to what extent the case law is still applicable. The Explanatory Memorandum and Explanatory Note make no attempt to answer whether the Government consider that they do, other than stating that

“no, or no significant, impact”

is foreseen by the implementation of the regulations.

Given what I have said so far, this looks a rather complacent and even misleading statement, especially when Sir John Whittingdale in the Commons said of these regulations that

“they simply tidy up the existing statute book as a result of the UK’s withdrawal from the European Union”.—[Official Report, Commons, Second Delegated Legislation Committee, 4/12/23; col. 8.]

In fact, looking closely at the wording of the Explanatory Memorandum, we see that there is no unequivocal statement to the effect that there is “no, or no significant, impact” on individual human rights as such. I think that the Minister, when she introduced those regulations, actually used those words—that there is no significant impact on human rights as such—but I hope that she will reassure us by repeating those and that she anticipates that there will be no significant impact.

The deletion of supremacy also turns the relationship between the UK GDPR and the DPA 2018 on its head. If there is a conflict between the UK GDPR and the DPA 2018, the DPA 2018 will take precedence. That is the opposite of the intention of the legislation when it was drafted and may have unforeseen consequences. There is a limited exception to the general rule that REULA introduces, that domestic law will trump retained direct EU legislation. This exception operates in the context of data protection rights. Data subject rights under the UK GDPR will generally take precedence over rights or obligations in other domestic law. However, the rights and obligations in chapter 3 of the UK GDPR, relating to the rights of the data subject, are subject to the exceptions in Schedule 2 to the DPA 2018.

It appears that there is no scope under REULA to disapply the Schedule 2 exceptions on the basis that they are overly broad, as happened in the Open Rights Group case; instead, the courts would need to make an incompatibility order under Section 8 of REULA, which may delay, explain, remove or constrain the consequence of the Schedule 2 condition trumping data subject rights, but this is a less certain remedy than would have existed before. Under EUWA or when EU law still applied, it would have been clear that the UK GDPR had precedence and that overly broad exceptions in Schedule 2 to the DPA 2018 were unlawful. In practice, this means that data subject rights in the UK will be less certain and potentially less protected than before.

The significant uncertainty caused by the changes that REULA makes to the statute book could have been remedied by the Government using powers in REULA. The powers in Section 11 of REULA could have been used to turn the effect of EU fundamental rights and supremacy back on. Alternatively, the current relationship between the UK GDPR and the DPA 2018 could have been restored by using the power in Section 7. For instance, the Government could have clarified that established case law still applies, but they have chosen not to do so. The regulations seek only to cure the problem of deleting EU fundamental rights by replacing those references to fundamental rights under the ECHR, using the powers in Section 14, but this creates new uncertainties as outlined above.

I think noble Lords would agree that all this potentially makes the head spin, but I have not even got to the point where we might need to talk about the consequences if the UK withdraws from the ECHR or repeals the Human Rights Act, as so many Conservative MPs seem to want to do. Lowering the standard of data protection rights in the UK creates obvious risks to the continuing UK data adequacy decision, which rests on data protection rights being essentially equivalent to those rights in the EU. If the Conservative Party campaigns to leave the ECHR or repeal the Human Rights Act at the next election, then this will simply magnify the uncertainties. The substitution that the regulations make of ECHR human rights for EU fundamental rights may be short-lived. Lowering the standard of protection of personal data in the UK also risks failure in delivering the trusted data regime, which purports to be one of the underpinning foundations of the UK’s ambition to become a technology superpower by 2030.

There are clearly major questions to answer, which the Explanatory Memorandum and the Minister’s introduction come nowhere near answering. Perhaps she will now make a bit of a stab at this—although I would be perfectly happy for her to write with a response. We should be very grateful to Eleonor Duhs for her SOAS ICOP policy briefing and to Professor David Erdos for raising these issues in the first place.

In addition to all the foregoing, Professor Erdos also raises the question of ultra vires. I hesitate to raise this at this stage, having said quite a lot already, but he raises the fundamental issue concerning what appears to be a problem with the draft regulations’ legal basis— I expect that the Minister has been briefed on this. This is stated to be issues relating to Section 14 of the Retained EU Law (Revocation and Reform) Act 2023.

There is a case to answer, in a number of respects. I hope the Minister can give us some assurance on all of these issues, and I certainly hope that the chickens do not come home to roost.

[Lord Bassam of Brighton (Lab)]

The Minister will probably be relieved to know that I do not have a speech as long as that of the noble Lord, Lord Clement-Jones, but I share many of his concerns. I would very much appreciate some of the detailed questions that the noble Lord asked being put to the test in an essay to us, perhaps in the form of a letter. That might be very helpful.

As the noble Baroness said, the regulations propose to replace the definition of fundamental rights and freedoms contained in the UK general data protection regulation and the Data Protection Act 2018. As the SLSC noted, these are currently defined by reference to rights contained in retained EU law.

I share the concern of the noble Lord, Lord Clement-Jones, that the regulations were originally to be under the negative procedure. I am glad that the Minister and officials have decided that that was an unwise course, because it would have given us very little control over the process and would not have enabled the sort of scrutiny that we in this House have come to expect.

I also share the noble Lord’s concern about the data protection framework being a weak spot. There is not much question about that. As he says, this acts as a curtain-raiser to our discussions and debates on the Bill coming forward next Tuesday. The data protection framework is undoubtedly being changed and not, it seems, for the better. These regulations foresee a time when there will be a weaker level of data protection, and I do not think that is in the public interest.

The DSIT colleague, as the noble Lord, Lord Clement-Jones, said, told the SLSC that

“the impact on organisations and individuals as a result of the proposed changes was expected ‘to be minimal’, … but … was unable to rule out entirely potential differences in the rights and freedoms”.

As the SLSC concluded, while DSIT had

“not identified any discernible impact, any changes in this sensitive area may be regarded as politically significant”

and something on which, quite rightly, the House would want to comment.

We welcome the work of the sifting committees and that, as a result of their reports, the SI is being debated as it should be. We do not oppose the statutory instrument. We share the sifting committees’ concern about changes brought by the repeal of EU-derived rights at the end of the year and that these may, directly or indirectly, lead to a lower overall level of protection for individuals. However, we note that, while we are debating the SI only a short time before the Christmas Recess, the department did publish draft regulations in September. This has given relevant parties time to prepare for the changes, which has not always been the case under different iterations of His Majesty’s Government.

As highlighted by the Commons debate, we must consider this SI in the context of broader changes to domestic data protection law, and the potential long-term consequences of these changes on our relationship with other jurisdictions. As I said earlier, your Lordships’ House will shortly begin consideration of the Data Protection and Digital Information Bill. Concerns have already been voiced that this will lower data protection standards and thresholds and, as a result, put our EU data adequacy decision at risk when it comes up for review.

We will have the opportunity to discuss those issues in more detail next week, but we would be grateful to the Minister if she could distance herself from the unfortunate comments of Minister Whittingdale in the Commons, who accused my colleague, Sir Chris Bryant, of appearing to see conspiracy where none actually exists. We do not believe that is the case; we believe these concerns are rightly stated. It is our role to scrutinise His Majesty’s Government and to ask legitimate questions that are of concern to the public. We are doing so at a time when there are live debates within the Conservative Party about the extent to which the UK should adhere or even remain signatories to international human rights treaties.

So, while we support the SI’s passage, as it will keep the statute book in order as parts of retained EU law are swept away, the department has a lot more work to do to convince us and other noble Lords of its broader approach to data protection law. I give notice today that we will be following very closely the debates next week scrutinising legislation at Second Reading and, with colleagues, will no doubt be submitting amendments to the legislation to toughen it up. It is clear to us that there is a direction of travel, and it is not one that we agree with.

[Baroness Swinburne (Con)]

I thank noble Lords, who are very well versed in this topic and have obviously spent a lot of time thinking about it. I have had some flashbacks to my time in the European Parliament, where I did the original GDPR. I am glad that people now think it was a perfect piece of work. At the time, people were very critical of what we did.

[Lord Clement-Jones (LD)]

I did not realise that this was punishment.

[Baroness Swinburne (Con)]

It is definitely not punishment, but it has taken me back, and I am on a steep learning curve here. I thank noble Lords for their interventions. I will try to do some justice to them. As was suggested, if I have not covered the topics adequately, given that the questions were incredibly detailed, I will respond in writing so that noble Lords will have the detail.

As I mentioned in my introductory remarks, it is important to note that these regulations themselves do not remove any EU law rights. Parliament has already agreed to do that in passing the European Union (Withdrawal) Act and the retained EU law Act. If we support these regulations today, instead of allowing references to EU law rights in the data protection legislation to lapse without replacement, we will instead ensure that the relevant organisations continue to consider analogous rights under our domestic law where it is appropriate to do so.

The overall effect of the changes made by these regulations will neither undermine protections for individuals nor increase the regulatory burden for organisations. There could even be some benefits for organisations in the sense they will only need to consider how the rights of individuals are protected by rights recognised in domestic law rather than trying to comprehend how retained EU law protected those rights.

16:15

I turn to some of the specific questions raised. The noble Lords, Lord Clement-Jones and Lord Bassam, suggested that the regulations could undermine protections. As noble Lords will know, the current definition of fundamental rights and freedoms refers to those rights retained in Section 4 of the European Union (Withdrawal) Act 2018. The EU Charter of Fundamental Rights was not retained under that section, although many of the rights found in the charter were retained because they existed in other EU law. There is no authoritative list of these rights, which means that deciding which rights are caught by this definition is a question of complex legal analysis. The ECHR, by contrast, contains a specific and defined list of rights, which are already familiar in the domestic context. We accept that there may be differences between the rights under EU law and the convention rights described and given further effect in the Human Rights Act, but where these differences are in areas relevant to data protection, we consider that there are analogous rights and protections, even if phrased differently.

The noble Lord, Lord Clement-Jones, also raised the issue of supremacy. The purpose of the REUL Act is to ensure that the UK has control over its laws. However, we acknowledge the importance of making sure that data processing provisions in wider legislation continue to be read consistently with the data protection principles in the UK GDPR. That is why Clause 49 of the DPDI Bill, which will be debated in due course, will make sure that any new data processing provisions continue to be subject to the data protection legislation, unless Parliament decides otherwise. Replication of the effect of UK GDPR supremacy is a significant decision, and we consider that the use of primary legislation is the more appropriate way to achieve these effects, such as under Clause 49 where the Government consider it appropriate.

The noble Lord, Lord Clement-Jones, also raised the retention of EU case law. Any further effect on the application of retained case law by domestic courts will be governed by Section 6 of the European Union (Withdrawal) Act 2018, as amended by Section 6 of the REUL Act once that section is commenced, rather than by this SI. It is not possible to state precisely, of course, how the courts will treat each individual piece of retained case law. However, it is unlikely that a court will depart from a decision simply on the basis that it refers to the right to the protection of personal data where the relevant interest is also protected by Article 8 of the ECHR.

The noble Lord also raised the issue of withdrawal from the ECHR. In these regulations, we are referring to rights recognised in UK law as it currently stands. The changes we are making refer to rights currently given effect in UK domestic law under the Human Rights Act.

We note that the noble Lord’s concerns about vires were not shared by the Joint Committee on Statutory Instruments.

The noble Lord, Lord Bassam, asked if there were any adequacy concerns about these provisions. We do not believe that there are concerns about adequacy. These are technical changes, designed to ensure legal certainty and protect the coherence of the data protection framework following the commencement of the REUL Act. As we are seeking to provide for continuity as far as possible, we do not think that the measures in the regulations pose a material risk to the EU’s adequacy decisions. Indeed, if we did not have a definition of fundamental rights and freedoms, this could weaken rights protections, which could itself be an adequacy concern.

[Lord Clement-Jones (LD)]

My Lords, before the Minister sits down, I want to pose a brief question to her. The Explanatory Memorandum states:

“As this instrument is made under the Retained EU Law (Revocation and Reform) Act 2023, no review clause is required”.


Does that mean that absolutely no review will take place for these provisions and how they work out in future? Or is the implication that it is wrapped inside all the impacts of REULA and therefore that there will be an assessment of how REULA has affected domestic law in general? I would be quite happy if the Minister writes to me on that.

[Baroness Swinburne (Con)]

Given the specificity of that question, we will write to the noble Lord with an answer.

Motion agreed.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023

Tuesday 12th December 2023 Grand Committee

Considered in Grand Committee

16:21

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023.

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

My Lords, the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023 was laid before this House on 16 October 2023. This debate follows a debate that I took part in on 4 December regarding three instruments related to the National Security Act that were also laid on 16 October.

Turning to the order we are discussing today, Section 66 of the Police and Criminal Evidence Act 1984, or PACE, requires the Home Secretary to issue codes of practice which govern the use of police powers, including the associated rights and safeguards for suspects and the public in England and Wales. The revised and new codes of practice before us ensure that those codes reflect the provisions of both the National Security Act 2023 and the Public Order Act 2023.

Before getting into the detail of the changes, I begin by noting that, as per Section 67(4) of PACE, two separate consultations on these changes were carried out, one in relation to each of the new Acts. These were carried out from 20 July to 31 August this year. The responses were generally positive about the changes proposed and the Government considered and incorporated suggestions for further amendments to the codes of practice following these consultations. The full details of the consultations and the Government’s response can be found on GOV.UK.

I will now briefly outline the changes made through this order—first, those to PACE Code A required as a result of amendments to stop and search powers made in the Public Order Act 2023 and the Government’s commitment to streamline stop and search guidance. Following Royal Assent of the Public Order Act 2023, PACE Code A required modifications to emphasise that the suspicion-led stop and search power introduced in Section 10 of the Public Order Act is afforded the safeguards contained in Code A. The suspicionless powers in Section 11 of the same Act authorise the police to stop and search individuals and vehicles to find objects made, adapted or intended to be used in connection with protest-related offences.

We are also changing PACE Code A to include provisions to improve community relations and data collection as currently found in the Best Use of Stop and Search Scheme guidance. Communicating the use of suspicionless search powers such as Section 60 of the Criminal Justice and Public Order Act 1994 and Section 11 of the Public Order Act 2023, where it is operationally beneficial to do so, and embedding a data collection requirement within the code, will build on the existing trust and confidence between the police and the community they serve.

Finally, changes proposed to PACE Code A include an updated start date for the serious violence reduction order pilot, which commenced in April this year, and an update to the ethnicity list found in Annexe B to reflect the latest categories from the 2021 census.

The amendments related to the National Security Act concern PACE Codes A, B, C, D and H, along with a new PACE Code I. In summary, the amendments to Code A are required to govern how searches of individuals subject to prevention and investigation measures under Part 2 of the Act should be carried out. These changes mirror the existing provisions in Code A for the equivalent terrorism measures.

The amendments to Code B, which covers search, seizure and retention powers, are required to account for the new search and seizure powers introduced by Schedule 2 to the National Security Act. They largely replicate those already contained in Code B for similar powers.

The changes to PACE Codes C and D make it clear that those codes do not apply to relevant provisions in the National Security Act or Schedule 3 to the Counter-Terrorism and Border Security Act 2019, such as detention provisions. This is because separate codes—including the new PACE Code I—deal with those provisions.

Both Codes A and D are also amended to exempt an officer having to give their name in the case of inquiries linked to national security. This extends the approach currently taken towards terrorism investigations and provides a crucial change to protect the identities of police officers from state actors who may seek to do them harm.

The changes to Code H implement recommendations made by the Independent Reviewer of Terrorism Legislation, which the Government have accepted. They largely reflect amendments to Section 41 of the Terrorism Act 2000 made via the National Security Act—for example, making it clear that time spent in detention under certain other detention powers will be accounted for when calculating the maximum period of detention.

Finally, this order brings into operation a new PACE Code I to govern the detention, treatment and questioning of individuals arrested under Section 27 of the National Security Act. This code contains various operational procedural matters, such as how to arrange for an interpreter for the suspect, what information must be documented in the custody record, how to provide cautions and what to do with the detainee’s property upon arrest. The code is based very closely on PACE Code H, which provides guidance for the detention and treatment of persons arrested under terrorism legislation, including the updates I have just set out.

I point out that the changes to these codes are supported by Counter Terrorism Policing and the Crown Prosecution Service. The Independent Reviewer of Terrorism Legislation has also specifically supported the changes to Code H.

I hope I have made it clear that changes made by this order are supportive of primary legislation that has already been agreed by Parliament. These revised codes promote the fundamental principles to be observed by the police and help preserve the effectiveness of, and public confidence in, the use of their legislative powers.

I very much hope noble Lords will support these revisions to the PACE codes of practice. I commend the order to the Committee, and I beg to move.

[Baroness Doocey (LD)]

My Lords, I thank the Minister for his introduction. As he said, the changes have already been debated at length and approved by Parliament, and we will not oppose them. However, I would like to make some specific points. Perhaps the Minister could address them in his summation.

We do, of course, understand the importance of ensuring, at a time of heightened and ongoing risk from hostile state actors, that the powers we give our police are a match for those people who seek to harm us. We also appreciate the need to give officers on the ground clear guidance, but there must be a balance between allowing the police to do their job and protecting civil liberties. We welcome attempts to keep the public informed about what the police are doing in relation to suspicionless stop and search. We hope this will go some way to re-establish trust among those citizens most commonly subjected to this practice, namely members of the black community.

We note concerns raised during the consultation process about when the public will be alerted to the use of suspicionless stop and search. The concern is that the term “operationally beneficial” is simply not clear enough to define when it will be in operation. Everyone recognises the importance of police operational autonomy, but can the Minister confirm that this particular concern has been taken into account?

We welcome the new data collection requirement in Code A, particularly given that the ethnicity of 20% of those subjected to stop and search in the year ending March 2022 remains unknown because it was not recorded. However, our key concern remains the extension of police powers to stop and search someone without reasonable grounds for suspicion. We have made our concerns clear that extending these powers now is fundamentally incompatible with the findings of the Casey review and the recent IOPC report, both of which found that progress in tackling racial disparity in stop and search still has a very long way to go.

In light of this, what signal are we sending to these communities in giving the police even greater leeway to carry on that practice, despite the well-documented racial bias still evident in it? Sadly, I suspect that, for many, it says that we are just not listening.

16:30

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction to these revisions to the PACE codes. He outlined the reasons for the changes, which reflect the various provisions of the National Security Act 2023 and the Public Order Act 2023. As such, the various rights and wrongs of the provisions have been debated, and they have been included in primary legislation. There is no need to rehearse these debates, but I will ask some questions about the resulting changes to the PACE codes.

PACE Code A is to be changed to include provisions to improve community relations and data collection. Given the importance, as we heard from the noble Baroness, of confidence and trust around suspicionless stop and search in particular, can the Minister say what these changes are and whether they help deal with issues such as disproportionality and the maintenance of community trust, which we all wish to see in the code? The changes say that they do that, so it would be interesting to know how.

More generally, is there any difference under these codes in the treatment of children or do they apply to everyone regardless of age? Some clarification on that would be helpful. Although the Minister said that these changes come from the National Security Act and the Public Order Act, given some of the questions around the use of stop and search, could other changes be made using this as a vehicle? One example mentioned here is strip-search. We have guidance for strip-search here, but we know what controversy there has been around it. I sometimes wonder whether the machine says, “We’ve had the National Security Act and the Public Order Act, so we need these changes to the PACE code that flow from that”, but there may be a missed opportunity to reflect more widely on some of the issues around what is sensible.

I think the Minister did so, but can he confirm that the stop and search powers in Sections 10 and 11 of the Public Order Act are now fully covered by these revised PACE codes?

The revised codes also include a date for the start of the serious violence reduction order pilot. When will this start and, given that it is a pilot, where will it take place? The Minister in the other place said that this was an updated start date. What caused the delay in the first place? I think the original intention, according to the statement of the Minister in the other place, was for it to start this April.

We support the various changes in the amended codes and the introduction of the new Code I, following the National Security Act 2023. As the Minister helpfully pointed out, the consultation showed that there was general support from not only the police and the CPS but the independent reviewer for the various revisions to the codes in terms of how persons are detained and treated when arrested under terrorism legislation.

Given that terrorism legislation is not devolved, but these PACE codes deal with England and Wales, will the Minister say what discussions have taken place with Northern Ireland—I presume with officials there—and Scotland, and how the PACE codes have been updated? The Minister spent some time talking about the welcome changes that were made to the PACE codes with respect to terrorism, but these codes refer to England and Wales and not to Scotland and Northern Ireland. How has that been dealt with? It would be interesting to hear from the Minister about what has happened there.

PACE Codes A and D are amended so that an officer does not have to give their name in the case of inquiries linked to national security. I understand that—it is for sensible and obvious reasons, as the Government said—but how would it work if somebody wanted to complain or get a review of their treatment? I appreciate that the name should not be given, but could a number be given, or is there some other method by which anonymity could be protected while recognising that sometimes issues arise and somebody may wish to complain or take forward something that has occurred in an interview? They may have been interviewed and perhaps even arrested and then released and wish to make some complaint about it. How will that be dealt with?

We accept these changes and recognise the importance of striking the balance between individual rights and security. Public confidence and trust are everything, even in challenging circumstances. I urge the Government to do everything in their power to ensure that we maintain that confidence and trust with respect to the implementation of this order. We do not oppose these important codes, but some clarifications would be helpful for us all.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions. I will do my best to deal with the points raised.

The noble Lord finished on the subject of whether it is proportionate, in effect, to allow police officers to not give their names in inquiries linked to national security, as per Codes A and D. The Government have amended Codes A and D to exempt officers from having to give their name in cases of inquiries linked to national security, which extends the approach currently taken towards terrorism investigations. It is a crucial change to protect police officers from being obliged to reveal their identity to state actors who may be highly trained and seek to use such knowledge to conduct harmful activity against them. It is difficult to see how an individual might write a complaint against an officer who is interfering with them, but I will look into it, and if I can find anything useful to enlighten the noble Lord, I will come back to him.

The noble Lord also asked whether we have been consulting the devolved Administrations. The answer is yes. We have been consulting them extensively. When PACE Northern Ireland will be published is a matter for the Northern Ireland Executive. However, they are undertaking a review of the PACE Northern Ireland codes of practice and are apparently about to revise them. As soon as I have those revisions, I will let the noble Lord know.

[Lord Coaker (Lab)]

Given that the Executive and the Assembly are not functioning, does he mean that officials are doing that?

[Lord Sharpe of Epsom (Con)]

I assume so, but I will find out and come back to the noble Lord.

The Government also obtained concurrence from the Lord Advocate for the part of this that applies to Scotland. We engaged with the Scottish Government and Scottish policing throughout the process of creating this code. I believe that one or two of the changes made reflect Scottish policing’s comments on it.

On disproportionality, which was raised by the noble Baroness, Lady Doocey, as well as the noble Lord, of course I understand the concerns around disproportionality and the impact of stop and search, particularly on members of the black community. Nobody should be targeted because of their race. Extensive safeguards such as statutory codes of practice and body-worn video exist to ensure this does not happen.

It is worth pointing out that, although disparities in the use of stop and search remain, it is positive that they have continued to decrease for the past four years. The proposals set out in these changes, such as the communication of the suspicionless stop and search authorisation will, in my view, improve the relationship between black and ethnic minority groups and the police. Of course, the phraseology behind that—“where operationally beneficial” in particular—was very carefully considered to sort out this issue.

It is also worth saying that the Home Office now publishes more data than ever before on police powers, including the use of stop and search. As part of the inclusive Britain strategy, the Home Office Race Disparity Unit and Office for National Statistics have worked to improve the way stop and search data is reported and to enable more accurate comparisons to be made between different police force areas. The proposed change on data in this updated code would reflect the power given to the Home Secretary under Section 44 of the Police Act 1996, but this data is collected and published online as part of a statistics bulletin.

The noble Lord, Lord Coaker, asked about protections for children. There are safeguards in this code as well. Children detained will have to have an appropriate adult assigned to represent their best interests.

The noble Lord also asked whether there was a delay—there was. It was supposed to be rolled out on 17 January this year but ended up commencing on 19 April. The reason for that was the difficulty of getting the training in place in time. The four pilot areas are the West Midlands, Thames Valley, Merseyside and Sussex.

With that, I think I have answered the questions that were asked of me. I reiterate that the updated and new PACE codes of practice will help the police to use their powers in a proportionate and consistent manner in accordance with the primary legislation. As such, I commend this order to the Committee and thank both noble Lords for their support.

Motion agreed.

Immigration (Health Charge) (Amendment) Order 2023

Tuesday 12th December 2023 Grand Committee

Considered in Grand Committee

16:42

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Immigration (Health Charge) (Amendment) Order 2023.

Relevant document: 5th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

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

My Lords, the health charge reflects the cost to the NHS of providing healthcare to health charge payers. The increase supports the sustainability of our NHS, ensuring vital NHS services are funded and allowing wider NHS funding to be directed towards other priorities in the system.

The health charge was introduced in April 2015 to ensure that migrants contribute directly to the comprehensive and high-quality NHS services available to them from the moment they arrive in the UK. We all recognise the great contributions migrants make to help grow our economy and support our NHS; it is also important that those who use and benefit from our public services, such as the NHS, make a sufficient financial contribution towards the cost of these services.

The health charge is paid by temporary migrants applying for a visa to enter the UK for more than six months. It is paid up front, separate to the visa fee, and covers the full cost to the NHS of providing healthcare to those who pay it. Once paid, a charge-payer can access NHS services in broadly the same manner as permanent residents without having made any prior tax or national insurance contributions. Where additional NHS charges are paid, these are consistent with those paid by a UK resident, such as prescription charges in England.

Since its inception the Health Charge has generated more than £5.1 billion for the NHS. The funds generated are shared between the health administrations in England, Scotland, Wales and Northern Ireland, using the now-familiar formula devised by Lord Barnett.

The health charge must be set at a level that broadly reflects the cost to the NHS of treating those who pay it. The current rate, introduced in 2020, as determined by the Department for Health and Social Care, does not currently do this. The new rate of health charge replaces that agreed in 2020 by this House; it reflects the increases in healthcare expenditure and revised assumptions of migrant use of healthcare services. Using more recent and representative data better reflects NHS service use by health charge payers.

The order amends Schedule 1 to the Immigration (Health Charge) Order 2015. The full rate of the charge will increase to £1,035 per person per annum, with the discounted rate for students, their dependants, those on youth mobility schemes and under-18s, increasing to £776 per person per annum. These levels are currently set at £624 and £470 respectively.

16:45

Furthermore, the draft order amends Schedule 2 to formalise existing exemptions from payment of the health charge for migrants applying to the statelessness immigration route and those applying to the Ukraine schemes. I know this move will be welcomed across this House, as it places these exemptions on a legislative footing and provides clarity for applicants.

It is worth remembering that the charge does not apply to those who apply to settle in the UK, recognising the strength of their long-term commitment to our country and the contributions they have made while living here. Furthermore, safeguards exist. The Government recognise that the cost of the health charge may be unaffordable for some. On family and human rights routes a fee waiver application can be made, and a full fee waiver will be granted if it is determined that the applicant cannot afford the visa fee and the health charge. A partial fee waiver can be granted if it is determined they can afford the visa fee but not the health charge as well.

The health charge is designed to benefit the NHS and support its long-term sustainability. The government manifesto committed to increasing this charge to NHS cost recovery levels. The order delivers that commitment, and I commend it to the Committee and beg to move.

[Baroness Brinton (LD)]

My Lords, I am grateful for the Minister’s introduction to this statutory instrument, but he raises more rather than fewer questions for me. First, I point out that it would perhaps have been helpful to have debated together this SI and the Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2023, debated on Monday 4 December, as many of the arguments raised by the noble Baroness, Lady Lister of Burtersett, and others in her regret Motion debate also apply here. The Home Office may see them as separate but, for the migrant, it is part of a large increase in the visa taxes that they and their dependants have to pay up front.

This SI, alongside all the other legislation that the Government are introducing in relation to immigration, shows that, frankly, the current system is broken. These damaging new rules mean that British employers cannot recruit people they need; more families will be separated by unfair and complex visa requirements; and public confidence in the system has, frankly, been shattered.

One sector particularly severely affected will be our universities and research councils—I declare an interest, as I worked in that sector for 20 years. They will struggle to recruit the best international students because the cost for students, whether undergraduate or graduate students, post-docs or even senior research associates, will rise, because the fees charged by this Government are becoming a real barrier.

This week, Times Higher Education quoted Shashi Singh, who obtained his PhD at the prestigious Indian Institutes of Technology, which is on a par with the absolute best in the world—fewer than 4% of applications to study there are accepted. He is now a senior research associate in molecular biology at the University of Glasgow School of Infection and Immunity, and exactly the sort of world-leading scientist we should be encouraging to stay. He said:

“Last month, I paid £6,000 for settlement of my wife and daughter. When postdocs’ salaries are around £40,000 a year … that’s a huge strain on your family budget”.


He explains that the family cannot afford a car or taxis, because that

“money is needed to buy food or has already been used to pay for visas”.

This year, he, his wife and daughter would have paid a total of £1,718 for their annual health charge. Next year, with the 66% increase, it rises to a total £2,846.

I noticed in his introduction that the Minister said very clearly that the fee was separate to the visa fee. The problem is that those being charged do not feel that it is separate. The graph in the Explanatory Memorandum shows that in fact hardly any fee waivers were granted over the past three years.

In 2021-22, international students contributed £41 billion to our economy. That means that every 11 non-EU students generate £1 million-worth of net economic impact for the UK economy. This covers fees and payments for living costs such as rent and food. The problem is that post-docs such as Shashi will consider not coming to the UK at all. This is exactly the target group whom the Government should be supporting, not trying to deter. Their contribution to their university and their local community, the quality of their research and paying taxes are everything that this Government should aim for with their repeated mantras about “world-beating research”, yet it seems that the current Prime Minister has already forgotten Boris Johnson’s global talent scheme. Will the Minister explain how we will attract and retain the brightest of academics, whether students or post-docs, to deliver world-beating research when the Government are charging them these very large sums for a number of visa taxes?

Frankly, the increase in the health charge is the most extraordinary this year. The Secondary Legislation Scrutiny Committee’s fifth report sets out a range of concerns relating to it. It states that the Government’s methodology is “unconvincing” and does not explain with evidence the justification for this large increase. A more cynical person might feel that “made up on the back of an envelope” would be more appropriate. Certainly, if you read the detail of the Explanatory Memorandum, it is extremely difficult to find the method. The Home Office’s explanation is that there are three elements to the calculation: the overall cost of the NHS, the total population and then a “factor” that adjusts for the fact that migrants tend to use the NHS less than the average person because they are younger on average. So you divide overall cost by the population then multiply by the migrant costs factor to provide an estimate of the cost of the average migrant to the NHS.

The SLSC reiterates the point that the reason the amount has increased so much is because on one of those three data points the Home Office has substantially increased the migrant cost factor, but with no evidence. It is no good turning to the Explanatory Memorandum to the instrument because that provides no details on why the charge is to be increased at a rate well in excess of national health spending. The latter has increased by 25% since the last increase in the health charge, whereas the health charge is increasing by more than two-thirds, as I said earlier. Will the Government undertake to publish the full methodology before this SI is enacted and certainly before it is implemented?

Worse, the impact assessment on page 5 of the SI bundle states:

“Baseline volumes of visa applications are based on Home Office internal planning assumptions. The volumes used are highly uncertain and may not match actual numbers in future published statistics. The impact of increased IHS on volumes is based on assumptions of price elasticity of demand for visas”.


Will the Minister say what “price elasticity” means and how it has helped the Government come to the proposed increase? Surely it must not mean an excuse for charging whatever sum the Government want to increase it by a year, but without that empirical evidence of the background data, it is almost impossible to determine this.

There is a place for immigration and nationality visa fees but they should remain affordable, and if they have to go up, the increase must not be higher than inflationary levels. It is vital for our economy that British employers must be able to hire the workers they need, and those who choose to come to the UK to work or study should be welcomed for the skills and contributions that they bring, no matter how short a time they are here for. Most do not stay; they remain for a limited period only. Everyone should be able to have confidence that the immigration system is functioning properly. Our Benches would make migration work for the UK with merit-based work visas instead of an arbitrary salary threshold, which is a further problem.

At the moment, however, the real issue is how many of our migrants are going to face this enormous surcharge in the NHS fee, which has not been justified in any of the documentation provided by the Home Office.

[Lord Coaker (Lab)]

My Lords, as always, this SI is important. Many of the debates that led to the current system took place elsewhere. We need to seek to understand the instruments that are then put in place to make a reality of other government policies. I agree with much of what the noble Baroness, Lady Brinton, helpfully outlined. I also thank the Minister for his introduction.

This SI increases the charge payable by some migrants to access the NHS. The headline figure, for those people paying the main rate, will increase from £624 to £1,035—a large increase of 66%, compared with the 25% rise in NHS costs over the same period. There is a reduced rate for those under the age of 18, which increases from £470 to £776. Like the noble Baroness, we do not necessarily oppose the increases, or an increase, but what is the Government’s justification for such a large increase, which is well above the NHS rate of inflation over the same period? We are comparing 25% to 66%, which is quite a significant disparity. The Minister will need to justify to the Committee why the Government have seen fit to do that. Can the Minister say any more than he has done about what happens to those who cannot afford the charge? Can he confirm that it is a one-off charge, not an ongoing one? I assume it is, but I would be interested in that being clarified.

What updated evidence are the Government using to justify this figure? What assumptions do they use in their papers regarding the use of services argument? The Government explain that they believe the increase will help to deter some migrants applying to enter or remain in the UK. Again, where is the evidence for that? Is it the right policy to use health charges to try to deter migrants coming into the UK? If the Government believe that it will deter them, have they made any estimates of the numbers that will be deterred, or is it just a statement that some will be deterred without any estimate? Do any working papers in the Home Office give us an assessment or understanding of what that will be? The noble Baroness asked some of these questions. Have the Government made any assessment of the impact of these changes on business?

What is the Government’s answer to the Secondary Legislation Scrutiny Committee’s criticism that they used questionable methodology in determining and justifying the increase? Why is that committee wrong in its assessment of some of the methodology the Government used?

It is important to understand the figures. What is the Government’s estimate of the number who pay the charge currently and how much it raises, alongside future projections? I think the Minister said that it currently raises £1.7 billion, if I understood what he said. What is the projected figure over the next period?

The Explanatory Memorandum outlines and clarifies various exemptions. The Minister and the noble Baroness said something about some of the exemptions to paying the health charge. Can the Minister outline for the record what some of these clarifications and exemptions mean? How many actually receive any sort of waiver? As the noble Baroness pointed out, it appears from the charts as though hardly anybody receives a waiver or an exemption. Some clarity on that would be helpful.

Paragraph 2.2 of the Explanatory Memorandum talks about a number of different things that it would be helpful for us to understand. It talks about those on the Ukraine and statelessness immigration routes. I understand what the Ukraine immigration route is, but what exactly is the statelessness immigration route? It then talks about exemptions for “certain NHS workers”. Who are those “certain NHS workers”? Has this changed at all with this instrument—in other words, has the exempted list of certain NHS workers been extended or reduced?

It also talks about exemptions for “specified protection cohorts”. Can the Minister outline what a specified protection cohort is? One of the problems with migration, immigration and asylum is that sometimes it all gets mixed up—including in my own mind. Just to be clear, what is the status of Afghans, those from Hong Kong and others who come here under various schemes?

We have accepted the principle of immigration health charges and do not necessarily oppose this SI but, as the noble Baroness, Lady Brinton, and I have said, a number of questions need answering. Health charges need to be fair both in the level they are set at and in how they operate. The justification for such a large increase and the operation of the scheme alongside it are of extreme importance, which is why we have put various questions to the Minister.

17:00

[Lord Sharpe of Epsom (Con)]

I thank both noble Lords for their contributions to this shortish debate. I will do my very best to answer all their questions and commit to write if there are any that I cannot answer.

Those who move to a new country expect to pay towards healthcare. Countries around the world have a range of systems in place to do this, in line with individual healthcare models. It is right that we continue to prioritise the sustainability of the NHS and that temporary migrants make a financial contribution to NHS services available to them in the UK. Payment of the health charge provides near-comprehensive access to our health service, regardless of the amount of care needed, even for those with pre-existing health conditions.

I shall try to address all the issues raised. The health charge should broadly reflect the cost of treating those who pay it. However, the rates for students and their dependants, applicants to the youth mobility scheme and children under 18 will remain discounted. The increased rate of the health charge is comparable to the cost of private medical insurance here and abroad, which is a common requirement for individuals wishing to migrate to many other countries.

I think both noble Lords referred to the Secondary Legislation Scrutiny Committee. We thank it for considering the order and providing a detailed report on the legislation. Before I go into the methodology, I reassure the Committee that the Government have undertaken robust and detailed analysis of the annual cost to the NHS of treating health charge payers to determine the increased cost of the health charge. Increases to the health charge are based on the most recent data representing charge payers’ use of NHS services, more accurately determining the current cost to the NHS of treating health charge payers. The Government acknowledge the delay in providing responses to the Secondary Legislation Scrutiny Committee. Unfortunately, this was unavoidable, due to factors such as the changes in ministerial teams and the need for assurances of the responses between departments.

I turn to the methodology and the DHSC calculation. As set out by the Chief Secretary to the Treasury on 13 July, the health charge rates have remained unchanged for the last three years, despite high inflation and wider pressures facing the healthcare system. The increases to the charge reflect the higher costs in healthcare budgets since 2020. Additionally, the assumptions for how intensively charge payers use healthcare services in different settings have been revised to use more recent and representative data intended to better reflect migrants’ use of these NHS services. While the health charge is increasing, it is still considerably lower than the comparable average cost per capita of providing healthcare for the average UK resident, which currently stands at approximately £2,700 per person per annum.

I am aware of concerns around the combined cost of the health charge and visa fees and the impact that this may have on families and young people. The draft order maintains the reduced health charge rate for children, but the Government remain clear that migrants must pay the health charge when they make an immigration application and should plan their finances accordingly. The cost of the health charge and application fees are available online and should not come as a surprise. However, it is also recognised that, in some instances, people who are required to pay the health charge may not be able to afford it. In such instances, on family and human rights immigration routes and where it is backed by clear and compelling evidence provided by the individual, the health charge may be waived.

Where a fee waiver application is successful, the application fee and the health charge will be waived. Migrants who are granted a partial fee waiver are required to pay the application fee only; the health charge is waived in full. All the information about fee waiver applications is publicly available on GOV.UK and has been for a long time.

Evidence suggests that migrants are aware of the fee waiver process due to the volumes of migrants on eligible routes utilising fee waiver applications. For example, in the year ending September 2023, there were 46,470 visa fee waiver applications, which I would argue does not constitute “hardly any”. The Government are also committed to supporting vulnerable cohorts; there are a range of exemptions from the payment of the health charge, including for individuals in protected cohorts. That includes asylum seekers, looked-after children and victims of modern slavery and trafficking. This draft order extends the range of exemptions to migrants applying to the statelessness immigration route and to the Ukraine regime. In answer to the question from the noble Lord, Lord Coaker, about the statelessness route, it is basically for migrants who are unable legally to reside in any other country—so very similar to refugees.

[Lord Coaker (Lab)]

The Minister has just correctly defined statelessness and protected cohorts. To those who wrote the Explanatory Memorandum, all this is perfectly obvious, but for people like me and many others who read it, it would be extremely helpful if, instead of putting “protected cohorts”, they could add “such as” and do the same for “statelessness”. It would be helpful if that was done sometimes in an Explanatory Memorandum.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very strong case for footnotes, and I hope that my officials are paying attention to that.

On the questions raised by the noble Baroness, Lady Brinton, about the deterrent effect on migrants, the UK continues to welcome talented individuals from around the world who want to study and work here. It is difficult to isolate the impact of the health charge increase on visa demand, due to the 2020 increase coinciding with the Covid pandemic and EU exit, but evidence from visa applications over the period following the increase to £624 does not suggest any significant impact on application volumes. Visa application volumes are monitored and there remains a substantial demand for visas across the majority of the immigration routes. All fee levels across the immigration system, including the health charge, are kept under review and evaluated where appropriate.

The Government’s science and technology framework sets out 10 key actions to achieve the goal of becoming a science and technology superpower by 2030. The global race for science research, technology and innovation is becoming increasingly competitive. The Government are committed to making the UK the best place in the world to work for top scientists, researchers and innovators, and we are delivering the biggest increase in public R&D investment, including training our next generation of doctoral and post-doctoral RDI talent, having already committed to investing £20 billion in R&D in 2024 and 2025.

[Baroness Brinton (LD)]

I know that we are not discussing this today, but I referred to the increase in the income threshold to £38,500. If that is the case, why was it set at that level, when post-doc salaries start at £35,000, immediately making that important group of people unable to come here?

[Lord Sharpe of Epsom (Con)]

I was about to say that the Government launched the global talent network in 2022 to support recruitment of exceptional talent in priority areas, such as artificial intelligence, with direct support and information on attractive opportunities in the UK. The noble Baroness is right that this question is not germane to this instrument. We dealt with the increase in salary levels last week. I cannot remember the precise exemption for doctoral students, but there was a PhD exemption.

[Baroness Brinton (LD)]

Was that for post-doctoral students?

[Lord Sharpe of Epsom (Con)]

I will have to come back to the noble Baroness—I cannot remember.

[Baroness Brinton (LD)]

Perhaps the Minister could write to me afterwards. I am talking about post-docs, who arrive with a PhD on a salary of £35,000. They now have a problem because of the level at which this has been set. The point I was making is that this large increase and the other visa fee increases make the whole thing impossible. That is the real worry of universities.

[Lord Sharpe of Epsom (Con)]

As I said, I will write, because I cannot remember the precise details and I do not want to say anything that I will have to correct.

It is also important to highlight that, although current comparisons can be made, other countries do not have healthcare systems that are directly comparable to the NHS. However, when comparing the total healthcare costs and the costs as a proportion of salary, analysis shows that the health charge at its new rate is broadly equivalent to that in Germany.

We are not trying to deter migrants and reduce net migration by increasing these charges. The health charge simply reflects the cost to the NHS of providing health- care to health charge payers. It supports the sustainability of the NHS. It is not a tool to reduce net migration. It is a public sector fee and cannot exceed the cost of providing treatment for health charge payers. The health charge cannot be used for any purpose other than to fund healthcare for health charge payers.

Migration volumes have increased since the current health charge rates were introduced in 2020. The direct impact that the health charge increases have had on migration are difficult to determine due to the factors that I mentioned earlier and the impact of the Covid pandemic coinciding with the recent increases, but they certainly do not appear to be statistically significant, although that is probably over-egging it a little.

Regarding the Government’s assessment of the impact of the current rates of health charges on visa volumes, no formal review has been undertaken to assess their impact on immigration. That is partly due to the 2020 increase having coincided with the pandemic and EU exit. However, we monitor visa application volumes, which have been at record highs, as noble Lords will be aware, across the majority of immigration routes. All fee levels across the immigration system, including the health charge, are kept under review and evaluated where appropriate. To answer the specific question about price elasticity, it is basically about migrants’ willingness to apply for a given visa given an increase in price. This is derived from published academic research. I can provide links as required.

In terms of impact assessments, we have considered this; a full regulatory impact assessment estimating the impact of the IHS increase was published alongside the legislation. The Government have considered the impact that increases to the health charge will have on visa volumes, as I said. The regulatory impact assessment published alongside this estimates the potential impact on visa volumes using different scenarios. The Government have considered the impact that the health charge increases will have on specific types of immigration. The regulatory impact assessment estimates the impact on migrants and visa volumes for each individual liable route. As I said, the immigration health surcharge is not a net migration policy. The published regulatory impact assessment provides estimates for the potential impact on visa demand under different scenarios.

I think I have answered most of the questions asked of me. I will write on those that I have not answered and the specific points raised during the debate. I finish by saying that the NHS was founded to care for every citizen in their time of need. We have to cherish and preserve that principle, but it is right that migrants granted temporary permission to be in the UK make a financial contribution to the running of NHS services available to them during their stay. On that basis, I commend the order to the Committee.

Motion agreed.

Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023

Tuesday 12th December 2023 Grand Committee

Considered in Grand Committee

17:15

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023.

Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, around a quarter of homicides in this country are domestic homicides, where one spouse or partner, or ex-spouse or ex-partner, is killed by the other. In recent years, there has rightly been a considerable focus on these tragic cases. We have had a number of particularly tragic instances, such as when Poppy Waterhouse and Ellie Gould were killed by their ex-boyfriends in 2018 and 2019 respectively, and that of Sally Challen, who killed her husband after years of domestic abuse and whose conviction for murder was replaced by a conviction for manslaughter in 2019.

The law of murder in such cases is currently being reviewed by the Law Commission at the request of the Lord Chancellor. Today, we are concerned not with the law itself but with sentencing. The statutory framework for sentencing in murder cases is to be found in Schedule 21 to the Sentencing Act 2020, replacing earlier legislation, as supplemented by guidelines of the Sentencing Council. However, hitherto, nothing in Schedule 21 has specifically addressed domestic homicide.

In the light of all this background, in 2021 the Government asked Clare Wade KC to conduct an independent review of domestic homicide sentencing. The Wade review was published in March 2023, and the Government’s final response was published in July 2023. Today’s instrument takes forward Clare Wade’s recommendations 5 and 8.

Regulation 3 of this statutory instrument deals with a murder that has occurred where there is coercive and controlling behaviour in a domestic context by the offender. It provides that such behaviour will be an aggravating factor for the purposes of paragraph 9 of Schedule 21, which sets out the statutory framework for dealing with aggravating factors. The instrument further provides that, where the situation is the other way round, and the coercive and controlling behaviour has been on the victim’s part—typically, where it is the woman who has killed the man—the fact that the woman has killed having been subject to coercive and controlling behaviour shall be a statutory mitigating factor for the offender subject to such behaviour for the purposes of paragraph 10 of Schedule 21.

In addition, regulation 3 of the draft instrument implements recommendation 8 of the Wade report, which deals with a situation known in shorthand—and, I must say, completely inadequately described—as “overkill”. This arises in cases, particularly at the end of a relationship, where the offender, typically the man, kills the woman in circumstances of extreme violence, defined in the instrument as “sustained and excessive violence”. That too will be a statutory aggravating factor. As I understand it, some 40% of domestic homicide cases occur at the end of a relationship, when the rage and anger are so intense that these very unfortunate and excessive situations arise.

[Lord Beith (LD)]

My Lords, I am sorry to interrupt the Minister while he is introducing the regulations. I am slightly worried that there is confusion over the ending of a relationship, which was a separate recommendation of the Wade report that is not dealt with in these instruments.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Beith, for that intervention. There is a further aspect of information that I would like to share with the Committee to deal with the very point the noble Lord has raised, for which I thank him.

I have explained the statutory instrument before us, but I need to complete the picture for the Committee. In the Criminal Justice Bill, which is already before the other place, there is a provision that deals explicitly with murders committed at the end of a relationship, defining it as in itself an aggravating factor. Your Lordships may well ask whether it seems a little bit piecemeal that we have this statutory instrument and something in the forthcoming Bill. That point was quite understandably made by the Secondary Legislation Scrutiny Committee in its consideration of this instrument. What happened was that the two recommendations that we are dealing with were accepted in the Government’s interim report by the previous Lord Chancellor, and when the present Lord Chancellor succeeded to the post he thought that we should go further. Therefore, it is in the forthcoming Bill.

However, that is not quite the end of the story—this is a continuing story—so I tell your Lordships for information and by way of background that there is another aspect of the sentencing exercise called the starting point: the level of the “tariff” at which you start. For these kinds of domestic murders, the Government commenced a consultation in November to consider the possible reform of the provisions dealing with the starting point in Schedule 21 to the 2020 Act. I should say that these developments are in response to continuing concerns by stakeholders, particularly victims and their families, about the response of the law to these very difficult cases. The Government are listening to those concerns and continuing to address the issue. However, as I indicated, the statutory instrument before us adopts the two recommendations of the Wade report. I therefore commend the instrument to the Committee and beg to move.

[Lord Beith (LD)]

I am very grateful to the Minister for his introduction and his helpful and illuminating response on the matters that I raised in my intervention. As he said, these regulations carry out the intention to address murder related to domestic violence and coercion. The intention was expressed in Schedule 23 to the Sentencing Act 2020 and follows the Clare Wade report. We support these provisions, which take into account the context of controlling and coercive behaviour in relationships, treating them as an aggravating factor in sentencing for murder or, in the case of a murder by a victim of a controlling relationship, as a mitigating factor.

The regulations introduce the concept of overkill—a word which bothers me as much as it did the Minister as being inadequate to describe the use of violence in excess of what would have been required to kill the victim—as an aggravating factor, not least because of the deeply distressing impact of some of these horrific murders on victims’ families.

However, I have some concerns. I begin with those raised by the Secondary Legislation Scrutiny Committee, one of which has been referred to by the Minister. The reference to consultation with the Sentencing Council blandly and misleadingly fails to mention the council’s concerns, including about the wording of the overkill provision. The Explanatory Memorandum should explain using all the relevant facts. It should not obscure by omission. I presume the revised wording has met some of the council’s concerns, but I would be grateful for some clarification of that as it was raised quite forcefully by the scrutiny committee.

The scrutiny committee also questioned the failure to include other provisions proposed in the Government’s response to the Wade review. We had a helpful explanation from the Minister that things are moving on and that the new Lord Chancellor has indeed taken up the concerns and included them in draft legislation. Indeed, I was a bit surprised by the Government’s defence that the earlier omission of some of the recommendations was because these statutory instruments were an interim response, but I will not criticise further because there is obviously progress on that front. I rather agree with the committee that

“in general, it is better policymaking to make all related changes at the same time”.

More than that, I argue that it makes for more coherent legislation if you put things in the same piece of legislation.

In supporting these provisions, I must, however, make clear what they cannot do. In the first case, they cannot and should not remove the judge’s ability to take into account all the relevant circumstances of the case when passing sentence. Justice should not be blind or deaf to the many different issues that may emerge in evidence or in mitigation. The judge must justify deviation from the guidelines but must be free to do justice.

Secondly, we should not deceive ourselves or the public with the pretence that these provisions will have a powerful deterrent effect. Justice has many purposes, including punishment and rehabilitation, but deterrence is scarcely a major factor for this kind of crime. Someone who, having used enough violence to kill the victim, carries on to inflict more violence is not going to think, “Oh, I’ll get a slightly longer sentence, won’t I, because of that statutory instrument?” That is not the real world; it is not the mindset of those who would carry out such terrible and vengeful acts.

That brings me to my final point. For the murders we are talking about, the murderers need in many cases to be imprisoned for long periods for public safety, including the safety of other potential victims of the same kind of crime, but adding a few more years to the sentence may only marginally, if at all, add to public safety and will do nothing to protect safety when they are eventually released. The extra years are added to recognise the greater severity of the offence, and we add them because they are almost the only means we know of recognising that severity and marking it with a more severe penalty. It would appear ethically bland if we treated different murders in exactly the same way, but what we actually do is allocate significant resources to keeping somebody in prison for a bit longer in a hopelessly overcrowded prison system, in which resources are desperately needed for rehabilitation to reduce the risk of reoffending when offenders are released.

As a society, we need to look for more effective ways of recognising and challenging crimes of varying degree and asserting that they will not be tolerated, otherwise we are condemned to endless sentence inflation because sentences for one crime affect sentences for another. It will not be long before comparison is made between these crimes and some other crimes and an argument for longer sentences for them. We have a problem as a society in finding ways of recognising the greater severity of some crimes than others that do not simply commit resources in an ineffective way when those resources are needed to secure public safety.

As I said, we support these provisions, but room must be left for judicial discretion and there must be some recognition that we do not cure crimes simply by passing statutory instruments such as this.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for introducing this statutory instrument. The Labour Party supports these regulations.

As we have just had explained to us, the instrument introduces two additional statutory aggravating factors and one additional statutory mitigating factor in the determination of the minimum term relating to the mandatory life sentence for murder. The new aggravating factors are the fact that the offender had repeatedly or continuously engaged in behaviour towards the victim that was controlling or coercive and the use of sustained and excessive violence towards the victim. The new mitigating factor is the fact that the victim had repeatedly or continuously engaged in behaviour towards the offender that was controlling or coercive.

17:30

The noble Lord, Lord Beith, very adequately covered the points made by the Secondary Legislation Select Committee on its reservations about the piecemeal approach to these various changes. The Minister answered those points and acknowledged the point made by the SLSC, so I will not dwell on that point again.

However, I want to dwell on some of the points that the noble Lord, Lord Beith, made in his speech just now. We all come at this with different experiences of the criminal justice system. As noble Lords know, I sit as a magistrate and have done so for about 18 years now. I see domestic violence permeate so much of the work I do as a magistrate. I see that in youth courts, family courts and adult courts. We are more conscious of it than when I first started 18 years ago. Of course, we are talking about an extreme here—murder—but it is absolutely not unusual for women, usually, to make allegations about partners or former partners, and that is a dominating factor in the cases which we hear in those various environments in which I sit.

I agree with the point which the noble Lord made about how these guidelines should not remove the ability of judges to sentence and deviate from the guidelines. Of course they should give reasons if they do that, but each case is different, and guidelines are guidelines, not tramlines, as we all know. That point is worth repeating. I also agree with the point made by the noble Lord, Lord Beith, that in these particular cases, deterrence is unlikely to affect the ultimate outcome. We need to be realistic about that. It is difficult to acknowledge, but it is reality, that different types of murder need to be treated differently, and the way the judge sums up the murder and gives the reason for the sentence reflects society’s view of the way that murder should be treated. So this is useful for judges. Of course, they make extremely difficult decisions, and guidance which is up to date and acknowledges the reality of many people’s lives, particularly women’s lives, is a good thing.

In conclusion, I will talk about sentence inflation. In fact, just before this session, I listened to the Lord Chancellor addressing the All-Party Parliamentary Group on Penal Affairs about his general approach. I think it is fair to say that everyone in the room thought it was a breath of fresh air compared to some recent previous Lords Chancellor. There are some very real and substantial problems within the wider prison estate, and there is a problem with overcrowding, of which we are well aware. I was comforted by the fact that the Lord Chancellor understands these problems very well. As I said, the Labour Party is happy to support these changes which we are talking about in this SI because it is right that the overwhelming importance of domestic violence should be acknowledged and properly reflected in sentencing guidelines. As the Minister said in opening—I will just repeat the stat he gave—one-quarter of all homicides in this country are domestic-related. That is a terrible fact, but I suspect it has not changed for many, many years, although it has been acknowledged more only in recent years.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for their important contributions. I venture to suggest that we all in many ways share an analysis of the nature of the problem and that we are working, I hope collaboratively, to arrive at solutions on very difficult issues.

I will deal in so far as I can with the various points made. I can tell your Lordships that there was a very full exchange with the Sentencing Council. As I understand, it was concerned among other things with exactly how “overkill” is defined, or that sort of point. The question is: how far should you go into all that in the Explanatory Memorandum? Maybe it was a bit skimpy; if so, the Government will take that very much into account. However, the Sentencing Council’s views have been fully taken into account and they are reflected in the instrument. I do not anticipate any disagreement from the Sentencing Council’s point of view with this statutory instrument.

Secondly, as both noble Lords have rightly said, these regulations do not in any way cut down the discretion of the judge in a particular case to consider all the circumstances that he thinks fit. They will always take into account all relevant circumstances, but they provide important statutory reinforcement of the approach that should be made in domestic homicide cases. As the noble Lord, Lord Ponsonby, rightly said, and as I think is common knowledge, we have had domestic violence cases as a substantial proportion of all murder cases for years and years—probably for centuries. However, we have become much better informed. I nearly said we have also become much better equipped, but I do not quite mean that; we have become much more able to understand the situation—I will put it like that—and draw appropriate conclusions than perhaps has been the case in the past.

As I think I said in opening, this is still work in progress. We are still working on aspects of this—on sentencing and, in due course, we will be working on aspects of the law of murder itself, whether we should have just one law for murder, or ways of distinguishing better between different circumstances. That, I think, is a question for another day.

On the general question of sentencing, I want to say, respectfully, that I acknowledge the force of the careful remarks made by the noble Lord, Lord Beith, on this issue. I think, respectfully, that today is not the day for a general debate on sentencing policy, but we have very difficult issues in this area. There are always the questions of public safety, deterrence and rehabilitation, but there are also questions of public outrage and anguish. How do we deal with those?

From a personal point of view, it is very nearly impossible to disregard public outrage and anguish as factors in the circumstances when the court comes to consider what it should do. That is a fact. We are certainly in a situation where, for some time now, sentences have been growing longer. That has produced pressures on the prison estate, which have been further complicated by Covid and by the increased numbers of police officers, who are arresting more people than they were before. We have all sorts of things to deal with. These are difficult matters, which will merit full debate on another occasion. I have endeavoured to deal as far as I can—otherwise, I hope your Lordships will forgive me—with the points made this afternoon. I commend this instrument to the Committee.

Motion agreed.

Legal Services Act 2007 (Approved Regulator) Order 2023

Tuesday 12th December 2023 Grand Committee

Considered in Grand Committee

17:39

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Legal Services Act 2007 (Approved Regulator) Order 2023.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I have to confess that I struggle to find anything interesting to say about this statutory instrument.

Under the Legal Services Act 2007, the Legal Services Board oversees various approved regulators for persons providing legal services. They are designated under Schedule 4 to the Act. In 2009, the Association of Chartered Certified Accountants—ACCA—was designated for the regulation of probate activities. It did not embark on any regulatory activities until 2018, when it found that the uptake was extremely low: it granted authorisations for probate to only 99 persons. At that point, the association discovered that the costs of regulating were very high and it therefore determined that it would withdraw from that activity. It applied to the Legal Services Board in October 2021 to cease to be designated as an approved regulator. The Legal Services Board approved that request on condition that the 99 persons already approved had either ceased to practise or been transferred to another regulator, mainly CILEx Regulation. That condition having been fulfilled, the Legal Services Board asked the Lord Chancellor to regulate the situation by removing the designation of the ACCA under the Act. This statutory instrument now rounds off that process and terminates its authorisation, which is to all intents and purposes redundant anyway. I beg to move.

[Lord Beith (LD)]

My Lords, it is indeed difficult to find many interesting things to say about this instrument, except perhaps that it has taken more than two years to get to this point after the ACCA decided that its members did not want to be either engaged in or regulated in respect of probate work. However, I have a question about CILEX that puzzles me.

The transitional arrangement is that some people will be or have been transferred to CILEx Regulation. CILEx Regulation is itself the subject of a consultation, which ended in November, because it has been proposed that it should be transferred to the Solicitors Regulation Authority—a much larger body. What will that mean? Will accountants, or staff of accountants’ offices, be transferred to CILEx Regulation by the Solicitors Regulation Authority, or will some other transitional arrangement be made for them? The Minister is studying his papers; I hope he has an answer to the question.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Beith, has done much better than me, because I could not find anything of interest to say, so I will say nothing.

[Lord Bellamy (Con)]

My Lords, I think I have only one question to deal with, on the transitional arrangements for the 99 persons with whom we are concerned. My understanding—I will write to the noble Lord if my understanding is wrong—is that these persons have already been or are being transferred, so they are subject to an appropriate regulatory structure.

There is an issue in that there is some kind of dispute between CILEX and CILEx Regulation, which regulates it. That is an ongoing matter that will be resolved in due course by the Legal Services Board, or perhaps it will recommend a solution to the Minister. As I understand it, it is not appropriate for the Government to comment at this stage on how that will be sorted out. CILEX wants to be transferred to the Solicitors Regulation Authority, whereas CILEx Regulation is resisting that. It is an unresolved, ongoing dispute that is separate from the issue we are discussing, but the Government’s position is to stand away from it while the regulatory bodies sort it out between themselves. I do not know whether I have managed to approach the noble Lord’s question—

[Lord Beith (LD)]

I thank the Minister for his helpful answer. It would be helpful to have reassurance from the Government that, in so far as there are still people from this background engaged in probate work, they will continue to be regulated and know by whom they are regulated.

[Lord Bellamy (Con)]

As far as I am aware, I can reassure the noble Lord that they will continue to be regulated appropriately. If there is any further information that I need to convey, I will write to noble Lords accordingly.

Motion agreed.

Committee adjourned at 5.46 pm.