Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Prashar (CB)]

My Lords, I rise to support the amendment tabled by the noble Baroness, Lady Stroud, and supported by the noble Baronesses, Lady Lister and Lady Ludford, and myself. The noble Baroness, Lady Lister, in her usual manner introduced it fully and spoke movingly, as did the noble Lord, Lord Paddick.

As we heard, asylum seekers wait months or even years for a decision on asylum claims, and sometimes decades. This condemns them to poverty, uncertainty and fear. It leaves them in a limbo, experiencing poverty and destitution. If they are allowed to work, this would improve family life, give them better prospects for their lives in the UK, and they would be able to rebuild their lives in the UK and eventually integrate better. It also, of course, as we have heard from the noble Lord, Lord Paddick, makes economic sense. As we have already heard, the Migration Advisory Committee, which advises the Government on migration policy, in December 2021 recommended that the Government should look again at this policy. It also recommended giving asylum seekers the right to work after six months and not restricting them to the jobs on the shortage occupation list. Perhaps the Minister can explain why they are not paying heed to the advice of their own advisory committee?

The committee also states that the argument that this right would be a pull factor, as we have heard already, is not supported by evidence. The benefits of allowing asylum seekers to work outweigh the unfounded fears expressed by the Government. Therefore, I urge the Minister to accept this amendment, which has very wide support.

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute pleasure to follow both my noble friend Lady Lister of Burtersett—who is hard working to the point perhaps of being a Stakhanovite—and also the noble Baroness, Lady Prashar. I have added my name to Amendment 64 from the noble Lord, Lord Paddick, but I support the thrust of both of these amendments. I think this is a total no-brainer—forgive me, I really do. I have always thought this. I have been working around this area all my adult life and I have never understood the logic of Governments of both persuasions, over the years, prohibiting this category of humanity from working, at the same time as trying to get other categories to “jolly well get on and work”, not be dependent on the state and not be dependent on benefits: “Don’t be scroungers—just get out and work”. It seems so illogical to have this strange bifurcation.

--- Later in debate ---

It would also be a further incentive to destroy documentation, which nearly all of them do, both to delay the process and also perhaps to conceal the fact that some of them are not from countries where they are at serious risk. It is important to note that a significant proportion of asylum seekers have been found not to be genuine. It depends what year we look at. We have had this discussion, but certainly there is clear evidence from the past that roughly half were refused.

[Baroness Chakrabarti (Lab)]

I know that the noble Lord is concerned about asylum seekers who turn out not to be recognised. No doubt he is even more concerned about the smaller proportion of them who may be wicked people in some way. Does he acknowledge that wicked people who are convicted of crimes in this country, even those who go to prison, are allowed to work? Does he consider that a pull factor or an incentive to commit serious crime?

[Lord Green of Deddington (CB)]

I do not see the relevance of that question.

Let me conclude, if I may. As we discussed earlier in this debate, the Government’s asylum workload has tripled from 40,000 cases in 2012 to 120,000 cases in 2021. Furthermore, nearly half of all cases awaiting an initial decision have been waiting for 12 months or more. In the present situation, they would in any case get permission to work. However, it is vital for these delays to be tackled. On that point, the noble Baroness, Lady Chakrabarti, and I are agreed. It makes no sense to me to adjust the immigration system to encourage delay. This Bill contains some useful measures designed to speed up the asylum process, and they should be supported.

Independent Office for Police Conduct

Baroness Chakrabarti Excerpts

Wednesday 2nd February 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

I most certainly agree with my noble friend that trust in the police has never been more fragile than it is at the moment. Operation Conifer underwent several rounds of scrutiny, but there is further to go. Today’s report certainly means that the police have a way to go before they regain the public’s trust.

[Baroness Chakrabarti (Lab)]

My Lords, whatever our differences, I have no doubt that the Minister feels as disgusted as I do—I want to say that. This was horrific hearing and reading for all of us. However, would she like to have just one more go at my noble friend Lord Rosser’s question? The question was not “can” the Home Secretary put these inquiries on a statutory footing but “will” she. This is important for trust in the independence of the inquiry. It should be independent of both the Home Office and the Government, and the police. Will we, please, now have a fully statutory independent inquiry?

[Baroness Williams of Trafford (Con)]

My Lords, the noble Baroness is going to be disappointed because I have said in the past and will repeat that if the Home Secretary feels that the inquiry is not fulfilling its terms of reference, she can put it on a statutory footing. Of course, it is a decision for the Home Secretary.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Green of Deddington (CB)]

I think there probably is scope for discussion between Governments as this problem becomes an increasingly serious one for countries, certainly throughout Europe. Yes, I would not be opposed to that but what I am calling for is some realism and not slogans.

[Baroness Chakrabarti (Lab)]

May I just suggest to the Committee that we proceed with the Committee? I occasionally have nightmares about these issues and I am probably too sensitive to engage in human rights debates, but the die is cast—what can I say? I can think of nightmares I might have about who would be at the Dispatch Box to answer to my questions. At the moment, the little “question time” I have just heard is exceeding the worst nightmare. Can we perhaps hear from the Minister we have, rather than the potential Minister of my nightmares?

[Lord Sharpe of Epsom (Con)]

I will take that as an invitation. Thank you very much indeed. I will try not to be a nightmare.

--- Later in debate ---

[Lord Horam (Con)]

My Lords, I would like to introduce into this debate a subject about which we have heard almost nothing so far: the views of the British people. We are, after all, the upper House of the British Parliament. Their views should be heard.

I have some figures here from the latest YouGov poll on the subject of immigration. The interesting thing is that immigration is now regarded as the third most important subject after health and the economy—even more important than Covid, curiously; I am not sure about that but, none the less, that is what it says. A previous YouGov poll said that 70% of people thought illegal crossings were a serious issue, so the public are well aware of the issue; indeed, they have been seeing it every night on television, particularly during last summer. Some 63% said that illegal immigrants should not be allowed to settle here while 60% said that they should be removed. In a June 2021 YouGov poll, 60% said they thought that illegal immigrants should be banned from claiming asylum, while only 20% thought they should be allowed to claim asylum. Some 64% thought it was fair to remove people who come from safe countries, while only 15% thought it unfair. Those are opinion polls so take them for what they are worth—we all have our views about opinion polls—but they are a snapshot of opinion in the recent past.

My own view is that, on an emotional subject such as immigration, you need to develop a policy with which the British people are comfortable. If you do not have a policy with which the British people are comfortable, it will not be sustainable in the long run. I point that out to the noble Lord, Lord Kerr, who understandably made a point about our international obligations. If we had had a policy on immigration more widely that the British people had been comfortable with in the last 20 years, we might not have had Brexit. Sadly, whether we like it or not, immigration was a huge issue in the Brexit debate. I put it to the noble Lord that the extent to which people’s views on immigration were ignored was a factor leading to the decision that we took. I am a remainer, so I regret that.

[Baroness Chakrabarti (Lab)]

I wonder if I could ask the noble Lord two questions. First, obviously public opinion is always relevant, but does he concede that, by definition, someone who is a genuine “refugee convention” refugee is not and never was an illegal immigrant? Secondly—again, this goes to the comments made about opinion—does he agree that opinion is something that the people with the privilege to be in this place, and certainly those in government, play a role in shaping and leading as well as hearing?

[Lord Horam (Con)]

My point is that we should pay regard to opinion but it is rarely mentioned in debates about immigration—almost never, in fact. There is a case for putting forward what the British people think about this, whether you think it is right or wrong. I do not think it is wholly right but, none the less, we have to take it into account. We have eventually to reach a position where the British people are comfortable with the Government’s policies; in my view, that is what the Government are trying to do.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords—

[Lord Horam (Con)]

I will not take another intervention, if the noble Baroness does not mind, as I have given way twice and want to finish what I am saying. I do not want to go on too long.

This House has to take into account that the silent majority have very clear views about this which they have held consistently for a long period and which have not been heard, and this has had a major effect on the policy positions of the country. In my view, it has had a deleterious effect, unfortunately; I would rather we had stayed in the European Union, but that is the fact we have to face.

It is generally admitted that we are now dealing with a very difficult, specific problem, one aspect of the whole immigration problem, namely illegal crossings of the channel. It is a small part of the problem that creates a bigger problem. Many people have raised wholesale migration, which I understand is a huge issue which is tackled in many different ways—through international development policies, as well as immigration policies, and so forth. However, there is a specific problem here which any Government of any colour would have to tackle, namely people smuggling people—not brandy, tobacco or commodities, but people—into this country illegally, day after day, against the law. That is something that no self-respecting Government can ignore; they simply cannot.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I feel profoundly uncomfortable with Clause 11, and I am very tempted to vote for it to be completely removed. But I wanted to listen to the debate, and I am afraid that the people who have argued for the removal of Clause 11 have given me pause for thought, which was not what I expected to happen when I arrived. The reason is the way that this discussion has taken a particular form politically.

I am somebody who voted to leave the EU from the left—in the Tony Benn tradition—and I have historically been liberal on immigration. I have fought on many anti-deportation campaigns, and I am not somebody who thinks that one should close the borders. I am, more than anything else, a democrat; even in this House, I try to stay a democrat. I appreciated, with some irony, the comments of the noble Lord, Lord Horam, and the noble and learned Lord, Lord Clarke—Conservative remainers with whom, to be honest, I have not historically had a great deal in common but who raised some important issues that should inform this debate.

My concerns about Clause 11 were very well expressed by the right reverend Prelate the Bishop of Durham, who explained in great detail where I was finding difficulties with this. But I have a problem with the solution and the way in which this debate has been conducted. I think it is important to consider the British public’s opinion. It was interesting that a lot of people have asked us to walk in the footsteps of asylum seekers; I think empathy is hugely important and humane. But I also ask noble Lords to walk in the footsteps of the British public, who, if you ask them their opinion, do not all want hanging. Leadership is, broadly speaking, not the same as usurping their perfectly reasonable concerns.

What are their concerns? They are not that they do not meet any asylum seekers and, when they meet them, they change their minds; not that they lack generosity; not that they are xenophobic, mean spirited or narrow minded; and not that they want to close the borders and hate foreigners, as is often implied. Their concerns are that they would like control over the borders, which I think is a perfectly reasonable demand. A visceral illustration of a lack of control over the borders has been given to us by those arriving in boats, and we are all trying to untangle what to do about it as humanely as possible. That includes the British public, millions and millions of whom are incredibly generous of spirit towards all sorts of people and do not need lectures from here about how they have to open their hearts to people. They are full of heart-brimming generosity in all sorts of ways. Why do we have an issue here?

This is the bit that I cannot untangle. There are people who are seeking asylum legitimately, and one wants to welcome them. There are people trying to come to the country who are undoubtedly illegal immigrants, as anyone would understand them, but because there are very few ways to arrive as an economic immigrant, they may choose to describe themselves as asylum seekers. On a different set of amendments I will say that we should have more liberal immigration rules that would allow unskilled people to come as economic immigrants to this country.

We can see, and it is perfectly reasonable, that you cannot just say to people that everybody who arrives on a boat is obviously an asylum seeker, and that everybody who worries about them arriving must be a mean-spirited, horrible person who hates foreigners. That is my concern. I am trying to untangle that, because I genuinely do not know what to do. As I said, I would be liberal about economic migrants coming to the country, as much as I would about asylum seekers coming to the country, but I feel as though everyone is being forced to declare that they are asylum seekers because it is the only route in where you will not get kicked out. So I think that we are in a mess.

The Government need to answer this. What happened in relation to Brexit—for noble Lords who are interested in this—was not that people did not want any foreigners to come into the country but that they were told that freedom of movement was a non-negotiable international agreement that nobody could ever debate. So as democrats, people said, “Well, I live here; I’m a British citizen”—many of them from ethnic minorities, before anyone goes down the racist road—and they said, “Shouldn’t we be able to control who are British citizens who come here?” That is what happened. Other people said, “No, we can’t because we’re in the EU; we’ve got no choice”. So they got annoyed. My concern here is that if we say to the British public, “You either agree with us or you’re a xenophobe”, or, “You have to agree with us because we’ve got a refugee convention”—another international agreement from 1951, however good it is—“and it’s the only thing going; there’s no alternative”, that will also indicate that they have no democratic power.

I cannot understand why the Government keep trying to fit in what they are doing to the 1951 refugee convention, which, although one noble Lord described it as having been written in utmost liberality by British lawyers, was written by British lawyers—not by the British public. I want the laws to be written by the British public and for the British public, not just by lawyers—and in 2022, not necessarily referring back to 1951 all the time. I have no objection to that convention, but if it is not fit for purpose in 2022 to take control of our borders, the debate about immigration and asylum seekers will become toxic, if we just keep telling people that they cannot have this discussion. I believe I can convince my fellow citizens to be more liberal on immigration, but not when they are told that they cannot have the debate or that if they want to have the debate or to express worries about people arriving in boats, they must by their very nature be lacking in generosity and xenophobic. That is not the way to go. I am still likely to vote against Clause 11, by the way.

[Baroness Chakrabarti (Lab)]

My Lords, I think we have been having this debate all my adult life and probably all my life, but I am certainly happy to keep having it; there is nothing wrong with that. However, I do think that it is very important in the context of Clause 11 to make a distinction in Committee between immigration and asylum. If I may say so, I do not think that Brexit is terribly helpful to an analysis of Clause 11. It used to be said that for the French, a meal without wine is like a day without sunshine. Clearly, for some people the equivalent is a discussion without Brexit, but I am not one of them.

It is important to make this distinction between immigration and asylum, which are both big and important debates, but they are too often conflated—not just in our discussions in this Committee but to some extent in Clause 11 itself. The noble Lord, Lord Horam, did not have the opportunity to reply to my question—all sorts of people intervened in his speech, to be fair—but if somebody is a convention refugee, they are not and never were an illegal migrant. That is incredibly important.

I congratulate the right reverend Prelate, who I think gave the speech of this Committee, and not just because I agree with him. I do agree with him, and also the noble and learned Lord, Brown of Eaton-under-Heywood, and, of course, the noble Lord, Lord Kerr. What was so important about the right reverend Prelate’s speech was its specificity to the refugees’ journey and the way that that would be affected by this differentiation. I congratulate him on that, because it is a very good way to analyse Clause 11: whether it works and whether it complies with the refugee convention.

Why is compliance with the refugee convention so important? It is not like choosing to vote in or out of something that began as a trading bloc but was always a particular grouping of countries rather than the whole civilised world. The reason why the refugee convention is so important is because, after two world wars, it was literally the world’s apology for the Holocaust. That is the best way that I can sum up why the refugee convention is so important. While Britain did wonderful things, not least standing up to Hitler with lots of Americans and Russians and people from the Commonwealth too, and there are very good things to be said about Britain’s contribution, there were also less noble things that have to be remembered—about the people who did not manage to get out, who did not escape the Holocaust, including people who were not allowed into this country and other countries around the world.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

To comply with the ECHR means complying not just with Article 8 but with Article 8 read with Article 14, which means respecting the right to family life but also not discriminating in that context. How can it not be discrimination when the whole purpose of Clause 11 is discrimination between group 1 and group 2? It is blatantly a breach of Articles 8 and 14 read together.

[Baroness Williams of Trafford (Con)]

It is differentiation rather than discrimination. The two are quite different.

Amendments 44, 45, 47, 51 and 52 seek to remove the powers to differentiate entitlements. As we have noted elsewhere, these powers are broad and flexible; they do not require the Secretary of State to act in a particular way. Equally, there is ample discretion available in respect of whether a person is granted group 1 or group 2 refugee status. While the detail will be set out in rules and guidance in due course, suffice it to say that the exercise of the powers in question will be sensitive to vulnerabilities and individual circumstances. That enables us to balance the need to take a tough approach with the need to protect the most vulnerable.

We have been clear that our starting point in respect of the length of leave will be a grant of no less than 30 months. Similarly, settlement will be available by virtue of our long-residence rules. We have gone further in our defence of refugee family reunion, noting that we will continue to uphold our international obligations under Article 8, but in any event, there is no requirement to apply such entitlements in each and every case. I repeat that we fully intend to be sensitive to vulnerabilities and individual circumstances in that respect. That is why we have retained a considerable amount of discretion in the drafting.

Turning to Amendment 55, I do not think it would be appropriate or right for us to step outside of the existing power to make immigration rules under the Immigration Act 1971. This is the same power that we use to implement most other aspects of UK immigration policy, including but not limited to asylum policy. Indeed, areas in which we regularly use Immigration Rules to administer the system include the type of leave to remain, the length of leave to remain, the routes and conditions of settlement, and family reunion. It would be inappropriate to do otherwise in this case. The rules are the appropriate vehicle: they have a long-standing and clear procedure, with the appropriate level of scrutiny built in. As I have noted, however, I am absolutely committed to this policy being exercised sensitively with a view to protecting the most vulnerable. There will always be discretion in our policies to make the right decisions in each case, and that extends to the Immigration Rules.

I cannot agree to Amendment 39, which would remove the requirement for a person to claim without delay to be a group 1 refugee. That means that anyone claiming asylum, regardless of whether that was done at the last moment to defer removal, could be a group 1 refugee. That would undercut the entire purpose of the policy and embolden those seeking to abuse our rules. There are already safeguards within the legislation enabling discretion to be exercised, such that a claim should be made as soon as reasonably practicable.

Amendments 43 and 50 would amend the list of ways in which we can differentiate from a non-exhaustive list to an exhaustive one. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do that only by retaining flexible powers to respond to situations as they arise.

Amendment 48 would prevent the ability to differentiate in respect of family members. This is primarily about coherent policy. We should ensure that, where appropriate, family members of refugees are not treated more or less favourably than the lead applicant, but the flexibility that we wish to retain will also enable us to respond sensitively to particular circumstances as appropriate, including in respect of how we treat family members. For example, let us say we discover that a child has been a victim of abuse by their parents and needs to be taken into care. The flexibility in the powers would enable us to respond to such a tragic situation by granting a more generous entitlement to that child compared to their parents, in order to sympathetically reflect the need in those individual circumstances.

Amendment 53 would remove the ability to differentiate in respect of requirements for settlement for family members. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do this only through retaining flexible powers to respond to situations as they arise. That said, I anticipate that many if not most families will receive the same length of leave to remain to ensure that all qualify for settlement on the same terms at the same time. However, we want to retain the ability to respond flexibly to challenging situations that might require us to do otherwise in respect of length of leave for a refugee and their family.

I turn to Amendment 41, in the name of the noble and learned Lord, Lord Etherton. I hope I can offer some reassurance that his concerns have already been accounted for in the policy, so there need be no further amendments to the Bill in this respect, as I outlined earlier. We envisage that the provision will apply in cases where a refugee meets the first two limbs of Article 31— that is to say, they came direct and claimed “without delay”—but, at the time of the claim, they had entered or were present in the UK unlawfully, having, for instance, overstayed an economic migrant visa.

To illustrate, let us say a person overstayed their visa and then lodged an asylum claim. Because they had entered the UK directly and ostensibly claimed without delay, they might be eligible for group 1 refugee status but, due to having overstayed, we would also check whether they had

“good cause for their illegal … presence”

at the point of claim. If they had no good reason for having been in the UK illegally, they might be liable for group 2 status. An example of where good cause could be shown might be if a person had overstayed their visa and then lodged an asylum claim—a very similar situation to that described by the right reverend Prelate the Bishop of Durham. If their reason for overstaying and lodging an asylum claim while in the UK illegally was on the grounds that they feared presenting to the authorities because they were homosexual, in such a case this may well amount to a good cause.

Suffice it to say that the powers in the Bill are broad and flexible and therefore enable us to exercise discretion where appropriate, including with respect to “good cause”, which will be reflected in guidance to caseworkers.

I turn my attention to Clause 11 as it currently stands. These powers are primarily intended to uphold the “first safe country of asylum” principle. Clause 11 provides a power, as noble Lords have pointed out—they are not very happy about it—for the UK to differentiate according to whether people satisfy certain criteria based on those in Article 31.1 of the refugee convention. The Government have set out their interpretation in Clause 36. I will not distract the Committee from the issue at hand by going through the provisions of Clause 36, because they will be debated in full.

If I may just pick up the points made by the right reverend Prelate the Bishop of Durham, and the noble Baronesses, Lady Ludford and Lady Chakrabarti, on Article 31, the criteria we use as the basis for differentiation are not based expressly on one’s method of arrival. Instead, they are based on the criteria within Article 31 of the convention: whether someone came directly and claimed without delay, and, where applicable, had

“good cause for their illegal entry or presence”.

The clause acts on our commitment to do everything we can to deter individuals, as I have said, from making dangerous and unnecessary journeys through safe third countries, often putting lives at risk. I hope I have fully explained the Government’s rationale and addressed noble Lords’ questions. If I have missed anything out, I am very happy to follow up in writing but I hope that noble Lords will feel happy to withdraw or not press their amendments.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords—

[Lord Hunt of Wirral (Con)]

I will just finish dealing with the point raised by the noble Baroness. We must ourselves try to identify what these pull factors are that cause people to risk their lives in the way that they do. It may well be that both the noble Baroness and I are right to identify certain parts of the pull factors, but of course we have to recognise that there are those pull factors.

[Baroness Chakrabarti (Lab)]

Given that the Government’s position is that they are right about the refugee convention; given that they disagree with the UNHCR but have their own interpretation under which they are honouring the refugee convention; and given that the Government’s position is that it is about parliamentary sovereignty and not the sovereignty of people elsewhere, why should we be forming our interpretation of the refugee convention on the basis of French criticism? If we are worried about pull factors, perhaps we should reinstall “Go Home” vans and a hostile environment for people seeking asylum.

[Baroness Stroud (Con)]

My noble friend said that it would be good to identify what some of these pull factors actually are. At Second Reading, I sought to try to outline what I believed the pull factors were, and they are not things that we would want to destroy or diminish at all. My understanding of the pull factors—why people want to come to this country—is that they include our language, our culture, the rule of law, democracy, historic ties through the Commonwealth, family connections and liberty. These are the sorts of reasons why people want to come here. The small, pitiful amount of money that somebody gets to survive on is not something, when they are leaving Eritrea and thinking of the hellish journey that they are going to take, that is going to make them want to come here. It is much more likely that they experience push factors, which are war, famine and devastating impacts on their lives. We really need to understand the lives that are lived by these men and women who risk all to come here. We know that every system has elements that get exploited, but we have to make laws for the majority of people and the majority of cases, and to be the sort of nation that we actually want to be.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I hope that, at the end of my response, they will feel that I have at least given a partly positive response. I am aware that the noble Baroness, Lady Ludford, did not refer to this at Second Reading, but I am very grateful for the discussion we had—I think only yesterday—about this and other matters. I found it very helpful.

I, too, understand the strength of feeling being expressed. I both sympathise and empathise with the residents of the Chagos Islands about how they were treated back in the 1960s and 1970s. I also agree with the noble Baroness, Lady Lister, that return and citizenship are two different matters in relation to the Chagossians.

We recognise that some former residents of what is now the British Indian Ocean Territory missed out on rights to British nationality when legislation was last passed in 2002 to address the nationality of the Chagossians. Section 6 of the British Overseas Territories Act 2002 granted British Overseas Territories citizenship and British citizenship status by descent to any child born on or after 26 April 1969 and before 1 January 1983, where the mother was a citizen of the United Kingdom and colonies by virtue of her birth in the British Indian Ocean Territory. This measure reflected the removal of the Chagossians from the British Indian Ocean Territory and the fact that the mother of a British Overseas Territories citizen could not pass on her citizenship to a child born outside of the UK or a UK territory. The Chagossian community, however, has criticised this provision because it did not provide for circumstances where women left the BIOT before 26 April 1969 in anticipation of being required to leave, nor did the provision allow children to inherit citizenship from an unmarried BOTC father.

Here is the partly positive response to these concerns. I am pleased to say that the Nationality and Borders Bill currently makes provision to extend BOTC and British citizenship rights to any second-generation Chagossians who were not able to acquire citizenship through their mothers or unmarried fathers, due to discrimination in nationality law.

The issues are complex. As one noble Lord pointed out, some family members in the same generation hold British nationality while others do not. I agree with my honourable friend the Minister for Safe and Legal Migration, who stated in the other place that the Government are keen to consider what more we can do to support families seeking to settle here under the current system. Minister Foster has said that he is open to considering how we might use the FCDO £40 million fund package to support the Chagossians settled in the UK.

I must point out the position that successive Governments have expressed on this point. Amendment 11 would undermine the principle in our nationality law that applies to all other descendants of British nationals. Second and subsequent generations, born and settled outside the UK and its territories, do not have a right or entitlement to register as British nationals. I know that the amendment from the noble Baroness, Lady Lister, seeks, as she said, to limit the right to register as a British national to current generations who must apply within a limited timeframe. This does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy. It goes further than the rights available to many other descendants of British nationals settled elsewhere around the world.

The noble Baroness requested that I meet her and others interested in this matter. I always follow up on requests from noble Lords and I am very happy to meet her. We will consider the point raised by my noble friend Lord Horam about what more we can do to address concerns about the Immigration Rules. My noble friend Lady Altmann raised a point about citizenship. Of course, those without citizenship become overstayers. These are complex issues. As I said in reply to my noble friend Lord Horam, we are happy to consider what more we can do through the immigration system.

[Baroness Chakrabarti (Lab)]

In the light of the eloquent and compelling speeches made in this debate, does the Minister concede a distinction between people who leave a territory to settle elsewhere and people who are forcibly evicted from that territory?

[Baroness Williams of Trafford (Con)]

I do not think that anybody in this Committee would say that what happened to the Chagossians was, by any means, acceptable to them personally. I do not think I was trying to make that case.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I sense very well that the Committee would like to move on, so I will be much quicker than I had intended to be, but my noble friend Lord Paddick has asked me to speak to Amendment 29. Before I do so, I cannot resist rising to the challenge about my party’s involvement in the 2014 legislation. Perhaps after this debate I will explain to the noble Lord, Lord Moylan, the concessions gained in negotiation at that time in response to the agreement.

Amendment 29 would change the requirement from an assessment of conduciveness, if that is a word, to the public good to necessity in the interests of national security. I thank the Minister for her letter following Second Reading. I could not help thinking that the two examples she gave of where Clause 9 could apply probably were matters of national security. She says so for one example, and the other is where it is assessed to be

“in the interests of the relationship between the UK and another country”.

That must be very close to national security, unless the issue is a very long way away from the other country’s security, which would not be a good basis on which to move forward. The amendment would change the requirement of an order to allow for judicial involvement. These two examples actually show why the matter should go to a judge.

I am editing my speech as I go. Reference has been made to particular communities being especially affected by this provision. I say to the passengers on what, in my neck of the woods, is the 337 bus to Clapham that something does not need to be designed to have a particular effect. If it has that effect, it falls into the area we are concerned about.

Our amendment would also add to the exclusions a person holding British citizenship by birth, and where it would

“affect the best interests of a child in the family”.

That is looking at a fairly wide family. Use of the power would require an annual review, which I think is in the amendment from the noble Lord, Lord Anderson.

[Baroness Chakrabarti (Lab)]

My Lords, I have listened to this debate with enormous care. I have conflicting feelings about it. I do not know whether I am prouder of the quality, logic and humanity of so many of the speeches, particularly from the Benches opposite, or whether the more compelling emotion I feel is anger that the speeches even had to be made. Unsurprisingly, I will speak against Clause 9 standing part of the Bill and in favour of the various amendments attempting to dilute its pernicious effect—and even more in favour of the proposed new clauses that attempt to go further.

I almost feel as if I and the noble Lord, Lord Hunt of Wirral, have listened to two completely different debates. The absolute tour de force by the noble Lord, Lord Moylan, and other speeches on these new clauses were not wide of the mark, because they quite rightly acknowledged that Clause 9 deals just with notice. They conceded that point, but talked about the rot that goes further back in terms of two-tier citizenship and the more precarious version of citizenship that some people are coming to experience because of the increasing use of powers of deprivation, and because these will inevitably have to be used more against some groups within the citizenry than others.

Enforcement of Lockdown Regulations

Baroness Chakrabarti Excerpts

Tuesday 18th January 2022 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask Her Majesty’s Government what assessment they have made of the equality of treatment between different groups in respect of the enforcement of lockdown regulations by the police since spring 2020.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, we are clear that nobody should ever be subject to police enforcement based on their race, gender, ethnicity, age or any other protected characteristic. That is why the NPCC—the National Police Chiefs’ Council—has commissioned an independent analysis of fixed penalty notices issued to different demographic groups during the pandemic. The findings from this analysis will be published in due course.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that, particularly after such a long night. Broad police powers, however well-intended, will inevitably lead to arbitrary and discriminatory enforcement. She makes the point about racial bias and I look forward to the fuller picture. Have the Government now gathered more complete data on differentials in enforcement of lockdown regulations? How much was directed at, say, small family picnics or peaceful protests, as opposed to unsafe places of work?

[Baroness Williams of Trafford (Con)]

As I said to the noble Baroness in my first Answer, there is going to be more analysis of FPNs issued to different demographic groups. The outcome will be very interesting in all sorts of contexts—social and otherwise. Like her, I look forward to the findings from the analysis. In parallel to that, the HAC has published its report, The Macpherson Report: Twenty-two Years On, which raised the same concerns over disproportionality of FPNs.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness Thornhill (LD)]

My Lords, we on these Benches support the amendments in the name of the noble Lord, Lord Best, to which I have added my name. In view of the hour, I too will be brief, as the two noble Lords have already said it all. I thank the Minister for the time that she gave us both in meetings and in numerous emails. I genuinely believe that there is real commitment to undoing this blot on our societal conscience. Therefore, given the genuineness of that feeling, it is massively disappointing that it appears that the Government have decided not to seize the only opportunity that we can see in the legislative calendar to actually repeal this piece of legislation.

There is widespread support for repealing this Act. To do so would actually be popular and uncontroversial, unlike much of this Bill. It is unequivocally the right thing to do. The fact that in Scotland it has been repealed for years and that most police forces rarely, if ever, use the powers in the Act is surely evidence enough that, in reality, it is of little use in tackling the current issues of homelessness, where there are, as the noble Lord, Lord Young of Cookham, said, a raft of alternative measures at the disposal of the police and local authorities. It will be a great disappointment for many if this can is to be kicked further down the road. That is why, if it comes to a vote, we will be supporting the noble Lord, Lord Best. To steal a slogan from somewhere else, why do not the Government “Just Do It”?

[Baroness Chakrabarti (Lab)]

My Lords, your Lordships’ House can be proud tonight for seeking to prevent injustices well into the future, but in seeking to support the noble Lord, Lord Best, we can try to act on injustices that are nearly 200 years old.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we will be supporting the noble Lord, Lord Best, if he chooses to press his amendment to a vote. If I may refer briefly to my experiences as a magistrate, it is indeed true that we do not actually see this charge brought very often—of course, we do see beggars, but it really is not that often. It seems to me that there is widespread cross-party support for repealing the Act. A compromise has been put forward by the noble Lord, Lord Best, and I will be interested in hearing the Minister’s response. If the noble Lord does choose to press his amendment, we will support him.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

102: After Clause 172, insert the following new Clause—
“Duty to establish statutory inquiry into lessons to be learned from the death of Sarah Everard
(1) The inquiry into matters arising from the death of Sarah Everard, announced by the Secretary of State for the Home Department on 22 November 2021, is to be held as an inquiry under the Inquiries Act 2005. (2) The Secretary of State must ensure that the terms of reference of the inquiry include the wider lessons to be learned for the professional culture, funding, vetting and organisation of policing, the prevention of violence against women and the investigation and prosecution of misogynistic crimes.(3) If on the commencement of any provision of this Act, the inquiry does not have a panel of members which includes at least one member with experience in the area of violence against women, the Secretary of State must ensure that such a member is appointed.”Member’s explanatory statement
This amendment converts the existing Home Office inquiry into the matters arising from the death of Sarah Everard into a statutory inquiry under the Inquiries Act 2005. It also ensures that the Inquiry panel includes at least one member with experience in the area of violence against women and girls.

[Baroness Chakrabarti (Lab)]

My Lords, here we are, quite late into the evening, to discuss the group of amendments refined from amendments tabled in Committee in response to the horrific rape and murder of Sarah Everard and, I am afraid to say, a wholly inadequate response from some of the most senior police leaders in our country.

I do not want to dwell too much on this, but I do not think that it reflects incredibly well on the way we do business in your Lordships’ House that this group has miraculously come to be debated at this particularly late hour, not least given the fact that I have been around all day and have heard some very lengthy, florid, colourful, relaxed speeches on all sorts of subjects all afternoon and evening from all sorts of delightful Members of your Lordships’ House who have been infrequent engagers with this Bill and most of whom, for all sorts of reasons, are no longer here. I do not think that this self-regulating House has done justice to women and girls in this country, nor, indeed, have those who effectively control the agenda and have allowed this group to be opened at approaching 10.50 pm.

I feel the need to put that on the record for Hansard so that the various women’s groups and victims’ groups who have been waiting for this group to come up will be able to understand exactly what has gone on. I was particularly concerned about some of the debates that went on just before the dinner break with no concern for time—and sometimes not much concern for kindness or the dignity of our fellow human beings, but enough of that—no intention of a vote and no real intention of changing the law. I have also noticed the way in which some of us are censored for our length at strategic moments and others are not in this so-called self-regulating House.

This group deals not just with the Sarah Everard outrage but with the public concern about it and the way that women and girls have been treated in our criminal justice system more generally, and what that means for a crisis of confidence, potentially, in our police service, which is so essential to the rule of law.

I am grateful to noble Lords from parties and groups from all across your Lordships’ House for their consistent support for the calls for a full statutory inquiry, particularly into the broader matters arising from the Sarah Everard scandal. It makes the earlier remarks necessary. Of course, for all sorts of completely legitimate reasons—not least that people come from all over the country, have different health conditions and are of different ages—it is not possible for everyone who wanted to be here to be here right now.

Amendments 108 and 109 are in my name. Amendment 108 is supported by the noble Lords, Lord Carlile of Berriew and Lord Paddick, and the noble and learned Lord, Lord Garnier, while Amendment 109 is supported once more by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Garnier. These two amendments deal with the specific issue of it being lawful at present for arrested people—that is, people who are suspects but have not been charged and are therefore not defendants, or at least believe themselves to be suspects when they are stopped by a police officer, as poor Sarah Everard was—to be taken away in a vehicle by a lone police officer. Noble Lords, particularly those who have engaged with this issue and were here in Committee and at earlier stages of the Bill, will appreciate that that possibility has understandably caused a great deal of concern, in particular since last autumn when Wayne Couzens’s sentencing hearing revealed some of the truly horrific details of that case.

Amendment 108 would prevent a single officer ever lawfully taking suspects away in a vehicle. Amendment 109 takes a slightly gentler approach—helpfully suggested to me by the noble Lord, Lord Carlile, I might add; I am grateful to him—to the same problem. It does not create an absolute legal bar to a lone officer taking a suspect away in a vehicle, with all the dangers that that one on one creates for both the officer and the suspect; instead, Amendment’s 109 approach is to amend PACE—the Police and Criminal Evidence Act—so that the Secretary of State would be required to issue a full-blown PACE code of conduct to deal with the transportation of suspects.

Given who is left at this time of night, I know that the noble Lords here are engaged with these issues and understand the importance of PACE codes in particular. They are required in relation to things like detention and the questioning of suspects in a police station. Since 1984, they have been a really important protection for citizens in the police system. Amendment 109 is a new amendment—I did not table it in Committee—and I am very grateful to the noble Lord, Lord Carlile. I really want to hear any conceivable argument against this mild amendment, which would add “transportation” to the list of activities in relation to suspects for which the Secretary of State should issue full-blown statutory PACE codes of conduct.

When one considers Amendment 108—my previous amendment, unenlightened by the noble Lord, Lord Carlile—with its absolute bar on single officers taking suspects away, or the amendment to PACE, it is worth noble Lords remembering some of the quite bizarre and hubristic public comments that were made. They included, I am afraid to say, comments made by a police and crime commissioner who is no more, as well as by certain retired and serving police leaders, about women being naive in going along with a police officer who stops them late at night. They said that there is something wrong with them—that it is the woman’s fault. Some ridiculous public comments were made.

Equally, however, there were other comments suggesting that this practice should be changed and things should be done. If things can be done by way of police administration, why can they not be somehow reflected in this Bill? This would give greater confidence to the young women and girls in particular—wholly law-abiding people—who have been feeling such anxiety and such a crisis of confidence not just since Sarah Everard’s murder during a lockdown, at a very difficult time for our country, but since the Wayne Couzens sentencing hearing. I hope that I can persuade the Minister to reflect on that particular issue and on how to grapple with what I am proposing in Amendments 108 and 109.

Then, of course, we return to Amendment 102, which calls for a statutory inquiry. It is not only my repeated call: it has been a call from so many people. I am so grateful to my noble friends in the leadership of the Opposition, to the noble Lord, Lord Paddick, and his noble friends and to the noble Baroness, Lady Newlove. She and my noble friend Lady Lawrence are, in my view, two of the greatest champions of victims’ rights, cutting across all vested interests, all party interests and all bureaucracy. The noble Baroness, Lady Newlove, has been with me in relation to this amendment from the very start; it is nearly 11 pm, and she is still sitting there and is with me now. I thank her so much.

This is a call for a full-blown statutory inquiry, not an administrative inquiry, under the Inquiries Act 2005. It follows resistance and hubris, I am sorry to say, from senior police leaders who, as we obviously know by this time, do not want an inquiry of this kind. To put it in context once more—I know that I am taking time, but I feel the need at least to do this argument justice—I mention the relatively recent inquiry and damning report of the noble Baroness, Lady O’Loan. Not much longer than six months ago, she spoke about the obstruction that she faced from the Metropolitan Police—including from the commissioner, I am sorry to say—in reporting on the Daniel Morgan scandal. I need not paraphrase, because noble Lords have heard from the noble Baroness in the past and her report, including the shortened press summary, is there for all to read, along with her speeches in Hansard. She faced obstruction, and said specifically in her findings that she knew that she had been hampered by not having the statutory powers that would have been available under the 2005 Act. I give that as a piece of evidence in my call for a statutory inquiry into the matters arising from Sarah Everard’s murder.

I also give the tin-eared and insensitive—to say the least—policing of the Clapham Common vigil. We know in your Lordships’ House that this was contrary to the original working and decisions of the borough command and the police service on the ground, who were working with women’s and victims’ groups to facilitate a peaceful vigil. Senior leadership and senior officers in the Met decided that was not to be. We can now trace back the timeline, because it is all in the public domain if one takes the time to look at the newspaper reporting. We can tell that those decisions about the disproportionate, tin-eared and counterproductive policing of the Clapham Common vigil would have been made at a time when the senior police leadership knew things that we only now know about Wayne Couzens, what he had done—because he had interviewed at this point—his policing career, and various things that obviously went wrong. I know that that is embarrassing, but that is why we must have a statutory inquiry. All institutions made up of humans feel the need to close ranks when things terribly wrong. That is precisely the moment when outside forces, including your Lordships’ House, need to prevent that closing of ranks.

--- Later in debate ---

I hope that the noble Baroness will withdraw her amendment. Should she wish to test the opinion of the House, I would invite noble Lords to reject the amendment.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who stayed, even those who may have stayed under sufferance—I hope they will forgive me and understand how important this issue is to so many people beyond SW1.

Of course I have been in two, three and 15 minds about how to handle this, not least in the light of the previous vote on the adjournment, but I have to go back to the substance. I have to pay due respect to the speeches of the noble Baronesses, Lady Newlove and Lady O’Loan. I am not sure, in the light of their testimony, that I could suddenly pretend to be the grand old Duke of York—it is one thing to take your Whip on an adjournment vote. I believe in my heart that there will one day be a full-blown statutory inquiry into the wider issues that have just been highlighted by this horrific case. Noble Lords will have to tell their colleagues, friends and family how they voted when they first had the opportunity to do this. I have seen this time and again in my adult lifetime, with Governments and politicians resisting and resisting, and eventually, maybe years later, the argument for justice and the rule of law becomes irresistible.

On two points that the Minister made by way of reassurance, I am glad that there is now the new ethical duty for police officers to co-operate, but it is a disciplinary matter that would ultimately be in the hands of the police to deal with. If the police officer who does not want to co-operate, as is often the case, decides to retire, the ultimate sanction of dismissal will hardly give comfort. What if they are at the senior-most levels of policing in their non-co-operation? That cannot be equated with the power that statutory inquiries and judges have to compel witnesses or they are committed for contempt.

As for being “strongly guided” and “taking into account”, it is not the Minister’s fault, but there was an opportunity for the Home Secretary to announce that Dame Elish would have the final word on this, and we have not even gone that far. We are “strongly guided”, but we are not going to give this decision to Dame Elish, for whatever reason.

With respect, I do not think that we have gone far enough. I know that I may go down in flames, but I have to speak clearly to people outside this House. I have to do this out of respect for the noble Baronesses, Lady Newlove and Lady O’Loan. I want people to know that we stood for them, for the rights of women and girls in this country, and indeed for the reputation of the many decent police officers, including those whom we see here every morning and night when we come and go. We owe it to their honour. The right thing to do is to have a statutory inquiry, and I would like to test the opinion of the House.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I cannot discuss matters of nationality and borders without confessing that this is extremely personal territory for me, as I know it is for others in your Lordships’ House. It is personal territory because I am the daughter of migrants to this country—hard-working people no longer with me and yet with me always. They came, as so many like them did, at the invitation of the late first Earl of Stockton when he was Prime Minister.

In my working life as a human rights lawyer, first in the home department and subsequently outside it, I have seen time and again the manner in which Governments and politicians of all stripes have eroded the hard-won rights of refugees in particular, and how dog-whistle politics around immigration has toxified race relations and undermined race equality, even to the detriment of British people whose migration stories go multiple generations back. So these are issues as much of equality and common decency as of nationality and borders.

The Bill has a patriotic title. The use of the word “borders” is surprisingly colourful for parliamentary counsel: it could have been taken directly from a campaigning slogan. I have no objection to nationality or borders, but I must observe that neither Covid nor climate catastrophe respects either very much. A truly global Britain would cherish the refugee convention as a central pillar of the post-war international settlement once promoted by Britain and would not seek to dilute it. The Dunkirk spirit is about saving people in little boats, not turning them around. So soon after the still incompletely resolved Windrush scandal, we would be wise indeed to give the most anxious scrutiny to any two-tier system of rights to refuge or nationality.

Clause 9 has rightly caused outrage in civil society—if not sufficient media coverage or even debating time in the other place. To deprive a national of that status without notice should be beyond the contemplation of any civilised society that cares about rights and freedoms in general and due process in particular. A nation’s citizens are its responsibility and are not to be dumped like waste, even or especially on the vague and subjective grounds of security, diplomatic relations or

“otherwise in the public interest.”

That the Government are bound by international law not to render people stateless ensures that this provision must inevitably be applied in a racist fashion, with the Executive determining without public scrutiny, judicial involvement or even notice to the individual concerned that they are of a category of British citizen who may potentially qualify for nationality somewhere else, regardless of whether such nationality has even been applied for, let alone granted. No wonder this provision has inspired fear and loathing in our minority communities in particular.

Even the subject heading of Clause 11 sends a chill to the bones, with its “Differential treatment of refugees”. To penalise and even criminalise desperate people in any way for the manner in which they make their escape from persecution to the UK is to violate the letter and the spirit of the refugee convention, which was in no small part the world’s apology for some of the darkest moments in the history of the last century. The Bill attempts to redefine Article 31, thereby ripping up years of interpretation by specialist judges so as to grant only second-class protection to the majority of refugees.

These are but two of the myriad objections to this measure. I say that as an advance apology to noble Lords opposite for the many long nights and longer nightmares to come.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

Moved by

[Baroness Chakrabarti]

43: Clause 36, page 29, line 32, at end insert—
“(4A) The user may choose to be in the presence of the authorised person during the extraction unless either the user or the authorised person deems it impracticable or inappropriate, in which case an explanation must be set out in writing in the agreement referred to in subsection (1).” Member’s explanatory statement
This amendment, along with another amendment to Clause 36, page 29, line 32, in the name of Baroness Chakrabarti, would permit the user to choose whether to be present during the digital extraction, unless deemed impracticable or inappropriate; and create a statutory time limit for the authorised person’s retention of the device in the event that it is necessary to take possession of it. If the time frame elapsed without extraction taking place, a new agreement would need to be sought.

[Baroness Chakrabarti (Lab)]

My Lords, this group of amendments and the related clauses address the phenomenon that those unfortunate enough to have experienced it call digital strip-searching—the practice of demanding a complainant’s device, usually a mobile phone, in the police station in return for agreeing to pursue a criminal investigation, usually into an alleged sex offence such as rape.

I begin by thanking the Minister for taking the problem seriously and understanding the need to address it via statute. I am afraid that I remember Ministers standing at that Dispatch Box even a couple of years ago, denying that the practice was problematic, widespread or disproportionate and even arguing against the need for primary legislation—so-called consent, in exchange for a vindication of one’s fundamental right to an investigation into such a serious crime, being sufficient. Mansplaining to rape survivors is bad enough; “Baronsplaining”, if I may call it that, was a new level of insensitivity.

I will not insult the empathy of your Lordships’ House by reiterating why an extraction of data from a personal smartphone or computer is one of the most intimate searches in the modern era and can leave the complainant feeling more like a suspect, even if the extraction is swift and on the spot and takes no more data than is strictly necessary to the particular investigation. That successive Governments, DPPs and police leaders have failed to address this problem must have played at least some part in our appalling attrition rates for the prosecution of sex offences.

While this part of the Bill is a much-needed attempted correction, we would not need to amend it if survivor and human rights groups had been properly consulted. I declare an interest as a council member of the all-party group, Justice. Amendments 43 to 46, 48 and 51 in my name are advanced by a broad coalition of civil society organisations, led by Big Brother Watch, Amnesty International, the Centre for Women’s Justice and Rape Crisis. They are currently unconvinced that the Bill, either as it stands or with proposed government amendments, does enough to protect complainants and rebuild trust in the investigation and prosecution of sex offences.

Amendments 43 and 44 allow the complainant to be present during the extraction of data, unless that is impracticable or inappropriate, and create a time limit for any police retention of the device. Amendment 45 would make the threshold for extraction the tighter and objective ECHR test of strict necessity, and Amendment 46 would further tighten the criteria. Amendment 48 would allow a DCI review of the strict necessity of any extraction agreement, and Amendment 51 requires a fuller explanation of the person’s rights before they agree. I thank the noble Lord, Lord Paddick. Crucially, his Amendment 50 ensures that the explanation is given orally, as well as in writing. My noble friend Lord Rosser’s Amendment 52A makes provision for data in the hands of a third party.

Government Amendment 52 in the Minister’s name creates a proportionality but not a strict necessity test for extraction where the authorised person is of the subjective view that there is a risk of obtaining confidential information—of course there is. Amendments 53 to 56 replace the need for regulations with the laying of statutory guidance.

The government provision still contains fewer statutory safeguards than sought by the victims’ rights coalition, so I urge the Minister to move further in its direction by accepting its amendments, refining or tweaking them at Third Reading or, at the very least—and before the preparation of any statutory guidance under the new legislation—agreeing to meet with a small group of those representing voices that have been ignored for too long. I beg to move.

[Lord Beith (LD)]

My Lords, I am ready to support the commitment of the noble Baroness, Lady Chakrabarti, in bringing forward this amendment, and appreciative of the Minister’s moves as represented in the government amendments. I simply want to clarify some points, because there are still concerns in this area. Some of the concerns arise from the context.

Police abuse of procedures of various kinds has been apparent, even to the extent of affecting murder victims. It cannot be denied that within police forces there are a few people who will do these things. That makes it that much more difficult to have complete confidence in the voluntary arrangements that these amendments deal with. I ask the questions: how voluntary, how confidential, and how about disclosure?

How voluntary? When someone is asked to hand over their phone, the police officer usually says, “It’s up to you but unless you hand over your phone to me, I can’t see the Crown Prosecution Service having enough material to take this case forward, and I think that would probably be the end of your attempt to get justice”. I am paraphrasing, but that might effectively be what he says. That means the safeguards are important, and I welcome them, but will they be sufficient?

How confidential? Government Amendment 49 says “confidential” has the meaning it has in Amendment 47, but Amendment 47 does not actually define “confidential”. Clearly, on somebody’s phone there is a great range of confidentiality: from what might be a conversation about an intimate relationship through to a bank account, a family row or something else that someone regards as in need of safeguarding and treating as confidential. We need to be a little clearer about that.

What about disclosure? Can the Minister say a little about to what extent, if any, the requirement of disclosing material to the defence is affected by these provisions? That puts a further pressure, of course, on the victim of the crime, but it is an essential part of our justice system that when evidence is found that would assist the defence, it is the duty of the prosecution to hand it over. These are the points that concern me.

--- Later in debate ---

In conclusion, I hope noble Lords agree that we have the balance right at this stage between the safeguards to appear in the Bill and the matters that are appropriately addressed in the accompanying code of practice. I hope, on that basis, and on the understanding that we continuing to examine the issue of third-party material, the House will support the government amendments in this group and be content not to move other amendments.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who spoke in this short debate. What a great team, and a model of brevity, clarity and compassion, if I may say so. I thank the noble Lord, Lord Beith, for his rhetorical prods, which highlighted why “strict necessity” should be the operable test here—and, of course, the noble Lord, Lord Carlile, for reiterating disclosure obligations and the nature of the abuse that has been taking place in this area for too long. He was the first to crystallise the intimate nature of the virtual world, which was echoed by the right reverend Prelate and the noble Baroness, Lady Hamwee, among others—thus making it so important that the police explain not just this material and what is going to happen to it but what the process will be thereafter, including potentially court.

The noble Baroness, Lady Jones, ever succinctly and pithily, pointed to the Hobson’s choice with which too many complainants have been presented up to now, and I know that the Minister understands that. The noble Lord, Lord Paddick, should never suggest that he has not been on the ball in relation to this group or any part of the Bill. He has been the most diligent of all the very senior retired police officers in your Lordships’ House on these matters. I am also grateful to my noble friend Lord Ponsonby for making the case so clearly in relation to third-party material; it will clearly need to be returned to in relation to the victims Bill. I am glad that the Minister does not want the police and CPS just to wait for that. It is about trying to improve things immediately; they have been too dilatory in this area for too long.

I shall not respond to each answer that the Minister so graciously offered, save to say that I am not totally persuaded. If anything, some of her answers actually pointed to the wisdom of these amendments. For example, she mentioned a number of times the principle of last resort before this material should be sought from a complainant. That is strict necessity—not the softer approach of necessity and proportionality, and I do not understand why that higher test should not be replicated. It is great that it is in data protection legislation, but why should it not, as a matter of good law and good governance, be in this legislation?

However, I shall not be churlish, because in both the tone and substance of her remarks, the Minister has been such a contrast on this issue with those who have sat there before her. While warmly accepting her invitation to meet with her later and the various organisations, I beg leave to withdraw the amendment.

Amendment 43 withdrawn.