Police and Crime Commissioners

Baroness Smith of Basildon Excerpts

Monday 5th November 2012 Lords Chamber

[Lord Taylor of Holbeach]

That is very good news for the candidate in my noble friend’s constituency.

[Baroness Smith of Basildon]

My Lords, for a moment when the noble Lord referred to late legislation, I thought that the Electoral Registration and Administration Bill was being withdrawn to have new legislation on this but unfortunately he has not agreed with us on that point. Perhaps I may ask two questions. First, is he satisfied that the level of public awareness of and interest in these elections is adequate at this stage? Secondly, he will have seen the reports of shockingly low police morale. Does he think that this flagship policy on police from the Government has improved police morale, made it worse or made no difference?

[Lord Taylor of Holbeach]

My answer to the second part of that question is that I am certain that it will have done. It has focused public attention on the police as an institution in a way that has not existed before. It has made it quite clear that the services of those who work in the police service are valued. Indeed, people will be voting for the police and crime commissioner who will be responsible for the governance of police in local areas. I am sorry but I have forgotten the first part of the noble Baroness’s question. Perhaps she would not mind repeating it.

[Baroness Smith of Basildon]

I asked whether the Minister was satisfied with the level of public awareness of and interest in these elections.

[Lord Taylor of Holbeach]

I think that I have given that answer already. The poll conducted showed that 85% of the people who were eligible to vote in these elections were aware that they were taking place. I am satisfied. It is up to those of us engaged in democracy to get involved with making sure that these elections return good candidates to do the task that is set before them. It is an important job and it will make a lot of difference to policing in this country.

Statement of Changes in Immigration Rules

Baroness Smith of Basildon Excerpts

Tuesday 23rd October 2012 Lords Chamber

Moved by

[Baroness Smith of Basildon]

That this House regrets that notwithstanding welcome but limited measures to ensure the deportation of foreign criminals and tackle sham marriages, and notwithstanding the importance of greater protection for the taxpayer, the Government have not demonstrated that the specific minimum annual income requirement which has been introduced through the Statement of Changes in Immigration Rules (HC 194) is the most effective way to protect taxpayers and deliver fairness for UK citizens who wish their spouse or partner to settle in the United Kingdom.

Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee

[Baroness Smith of Basildon]

My Lords, I should say at the outset of this debate that we support the Government in their efforts to address and manage levels of immigration to this country and to make it easier to deport foreign criminals, but my Motion of Regret is on the specific aspect of HC 194, that part of it which sets an income threshold of £18,600 for British citizens and people settled here who wish to sponsor their spouse or partner to come to live with them in this country and of £22,400 for couples with children. I would also like, during the course of the debate, to raise with the Government the issue of Article 8 of the European Convention on Human Rights—that is, the right to respect for private and family life—and the Government’s proposal to find greater legal clarity by balancing Article 8 with public interest considerations.

On income threshold, of course it is right that if an individual wishes to bring their family to settle here in the UK, they should not assume that the state will support them. That is why it is already a requirement for an individual to demonstrate that they have access to sufficient funds at a level that will put them in a similar position to someone on income support here in the UK, so that they will not seek recourse to benefits. Unlike a blanket income threshold, the current position allows authorities to take into account the different ways in which a couple may be able to demonstrate that they can meet that requirement. For example, currently, the joint income of a couple can be taken into consideration when assessing whether their funds are adequate, as well as the likely employment prospects of one or both of the parties. Couples are also able to use an undertaking by members of their family in the UK to provide them with adequate funds for maintenance as evidence that they will be able to support themselves without recourse to the state.

I understand that that leaves a level of discretion in decision-making, and we support efforts to provide greater clarity in the rules, to eliminate opportunities for abuse, but we must also recognise that, nowadays, we live in a world where it is commonplace to travel, to study, to do business and to work abroad, so it is only natural that people from here in the UK will travel, fall in love and form long-term and permanent relations across borders. Family circumstances are not always as straightforward as government policy assumes. Many in your Lordships’ House will know of couples of different nationalities, friends and family members, who have established long-lasting relationships through living and working abroad.

When my Motion of Regret was published, I received several letters by e-mail and fax from those who have been affected by government policy. I do not know the circumstances of all those who have contacted me, but as a generalisation, I would class those who have contacted me directly as strivers—a term that the Prime Minister has used. They are people who work hard to provide for themselves and their families, not rich or wealthy people, but often people who work hard in useful jobs on wages lower than most of us in your Lordships’ House have come to expect in our working lives.

I want to refer to a couple of examples that I think may help your Lordships’ House in considering the issue. I shall call one family Mr and Mrs M. They are a married couple. She is from a Commonwealth country; she is Canadian. Both of them have children from previous marriages. They married in 2005 in the UK and lived in the UK for a year, when she went back to Canada to go to university to complete her education, which would no doubt lead to a better job. As she puts it to me in her correspondence, it was,

“short term suffering for the long term benefits”.

Her husband visited Canada a couple of times and they then decided that they would settle in Canada. For a number of reasons, not least being his responsibilities to his family here in the UK, including his parents, who were getting old, he moved back home in 2010 and they agreed that she would follow him once he found work. In the mean time, his wife sent him money from her earnings in Canada to buy household items for the new home that they were going to set up here in the UK. Again, these are people trying to do the right thing in seeking to support themselves. Alfred got a job; he was doing well and she started to complete the visa application form. However, in July 2012, their world just fell apart because he did not earn the £24,800 that the Government said he had to before his wife and two children could join him. His father was a miner in Wales; he had a low income—both were proud men and proud of their work. They estimated that his wife—when they thought she was going to join them—would get a job in the region of £18,000 to £24,000. Yet despite all their planning, and all their efforts to provide for themselves, they have fallen foul of this rule and are now living on different sides of the world.

There is another lady who contacted me, Miss BF. She and her non-EU partner plan to marry in December 2012. She wrote:

“I do not earn £18600. I work part time as a healthcare assistant for the NHS. I am unable to work full time as I have a 14 year old son … If I worked in London I could earn the £18600 however the cost to rent in London would probably be triple the cost of my current mortgage. The income threshold does not allow for variations in circumstances. It does not allow for the earning potential of single parents, or for women in general. Our wedding plans are now on hold”.

So no regional variation—or, again, partner’s income—is taken into account.

Mr S—a highly qualified man who has worked in government in the past—also outlines in his letter to me the perverse incentive of an absolute threshold. He lives some distance from London. He says:

“I’m desperately trying to find a job that would make the required £18,600 a year. In this area, that scenario is a difficult one, so I’m looking for work in London. If I secure such a job, earning the required salary, it’s likely that most of this would be spent on the high costs associated with living in London. Yet the government deem this ok. However, I could probably find a job in this area earning around £14-15,000 and would have more disposable income to support my family whilst having the assurity of living with my parents in the short term.”.

All these are people trying to do the right thing—trying to support themselves. As there is now no flexibility in the system, but a very blunt policy of a blanket income threshold, the rules can unfairly penalise couples like Mr and Mrs M, and people like Mr S and Miss BF. Can the Minister confirm that we have members of the Armed Forces serving overseas who, if they were to marry somebody they met on duty overseas, would have an income that would fall below the level expected by the Government and who therefore would not be allowed to bring their new wife or husband back to the UK with them?

People who are trying to do the right thing and who are strivers—and the Prime Minister has used both those terms—and who would so easily be capable of supporting themselves and are determined to support themselves without relying on the state, are being turned away. We need a system that delivers protection and fairness for existing tax payers, but also fairness to families like this who will ultimately be net contributors to the system.

This is about the right to family life for British citizens and those permanently settled in this country. That is not an absolute right but one that is rightly qualified by the public interest test. None the less, it is of the utmost significance to the lives of many British citizens who wish to settle their families in the UK. Did the Government properly and adequately examine all the options for the most effective method of delivering fairness to both families and taxpayers? We contend that the Government have failed to do so. The Government have relied on the response of the Migration Advisory Committee for justification of the policy and the level at which the income threshold has been set.

So, what was the question that the Government asked the Migration Advisory Committee, which provided the evidence that this was the correct policy? Did the Government ask: “Is an income threshold the most effective way of delivering fairness for the taxpayer and families and preventing abuse of the system?”. Perhaps the Government asked the Migration Advisory Committee: “What would be the best way of ensuring that those bringing a spouse or dependent children into this country would not have recourse to public funds?”. It was neither of those questions. Instead, the initial question that the Government asked the Migration Advisory Committee was framed in a way that made it clear that they had decided the policy before asking the question. It was,

“what should the minimum income threshold be for sponsoring spouses/partners”.

The policy of a single income threshold had been decided, and the question was asked in such a way that it could only be answered with an assessment of the amount. The Government pre-empted any independent advice from the Migration Advisory Committee on what would be the most effective and fair process for determining adequate means of support without reliance on the state because they had already unilaterally decided on an income threshold policy.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I will reflect on the Minister’s response and will read and consider his comments in Hansard. However, I have to say that at this stage I am disappointed by his response; I wonder if he took on board any of the comments around the House about the devastating impact that this threshold is having on so many families. All of us in your Lordships’ House understand the need to tackle abuses—this was said to the Minister—but this measure goes beyond that and I do not think, as other noble Lords have illustrated, that it actually achieves the Government’s policy objectives.

The Minister said that it more effectively reduced the burden on the taxpayer and was fair to families. Based on the examples he has heard this evening, however, it does not seem a very effective way to protect the taxpayer. The issue is not just the level of the threshold but the principle of the threshold. He claimed that one of the questions I asked was what happened if somebody lost their job. That was not the question I asked at all; the point that I was putting to the Minister was that a threshold is an inadequate way of making an assessment, as someone could be above that threshold and then lose their job but still have the right to remain, since a judgment was made at one point in time based on a person’s income, rather than on a package of measures that was available previously.

I appreciate that he cannot comment on individual cases, but Mr and Mrs M, the lady from Canada and her husband from Wales; the lady who was the NHS care worker; and the clergymen referred to by the right reverend Prelate the Bishop of St Edmundsbury and Ipswich who wanted to come or bring their spouses to this country will all listen to the Minister’s comments with some dismay.

I appreciate that he was not able to answer all the questions but I was disappointed that he answered so few. I mentioned one to him about the perverse incentive where an individual would have to go and live in a more expensive part of the country to see their income increase, even though their costs would increase, including their rent or mortgage, and their disposable income would fall. That would qualify them to be able to bring their spouse into the country because they had a higher income level. That is a perverse incentive, to have a lower disposable income. The Minister did not comment on that. Nor did he comment on any of the examples—I am sure that this was not intended—of Church of England clergy’s partners being excluded from the UK. He also said that the Migration Advisory Committee supported the level but my understanding is that the committee was asked what the level should be; it was not asked to comment on the proposals generally or on whether this was the most appropriate way to achieve the Government’s objective.

I was especially hoping that the Minister would respond on the following issue that I raised. The Migration Advisory Committee, in its response to the Government, said that, of those who satisfied the current criteria of being able to show they had access to sufficient funds to support themselves and their families, 45% would no longer be eligible under the new criteria to have their spouses come to this country. I asked him how many of those who were eligible under the current procedures would not be allowed under the new rules and have since claimed access to public funds. He has not answered that. The answer that he gave was that 267 individuals now claim some kind of public support or assistance, but he was unable to tell us how many of those had come to this country through the existing rules on family visas. If he does have that figure, it would be extremely helpful to have it. I suspect that it might not be available but it might have been provided to him. It would have been a more useful figure and the one that I asked for.

Obviously we understand the need to ensure that the system is not abused, but I fear that what is being done here today will not protect the taxpayer in the way that the Minister seeks, and it certainly does not protect the family. I beg to withdraw the motion.

Motion withdrawn.

House adjourned at 7.03 pm.

Extradition

Baroness Smith of Basildon Excerpts

Tuesday 16th October 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I thank the Minister for repeating the Statement. I do not think that I have had the opportunity to welcome him to his new position; I do so and look forward to working with him.

I entirely concur with our shadow Home Secretary, the right honourable Yvette Cooper, when she said in the other place that this was a serious decision and, as the Home Secretary explained, had to be based solely on the judgment as to whether Gary McKinnon’s extradition to the US would breach his human rights. It is testament to how serious a decision this is that the Home Secretary has taken two years to reach it. Within that time, she has commissioned further medical and legal advice. Can the Minister clarify whether the most recent psychiatric report commissioned by the Government was a separate and new medical opinion of Gary McKinnon or a review of the existing medical reports?

I focus on three specific issues in the Statement today: the Home Secretary’s announcement following Sir Scott Baker’s review; the implications that the Home Secretary’s decision may have for outstanding and future cases; and the European arrest warrant.

On the Baker review, it is clearly unacceptable that any case can be delayed for over 10 years pending a decision on extradition. I cannot overstate the difficulties and stress within this case but it is also a terrible burden on the victims and families; neither does it serve justice. We accept and agree with the conclusions of Sir Scott Baker’s review: that removing the role of the Home Secretary from human rights decisions in future will prevent cases languishing without decision for so long again.

In relation to the Government’s announcement of their intention to introduce the new forum bar the Minister will be aware that, when in government, we included the option for a forum bar in the Extradition Act. That has never been introduced. We understand and share Sir Scott Baker’s concerns over introducing further delays in the process, with the risk of endless satellite legislation. We will therefore be happy to work in co-operation with the Government on future legislation to resolve some of the outstanding practical concerns. We know that the expertise of your Lordships’ House will be especially important in that process. However, there is a wider problem that the Government have not addressed and I would be grateful if the Minister could help me on it. We are all becoming increasingly aware of cybercrime—a crime that can occur across several jurisdictions at the same time. As the legislation stands, a forum bar would not make any difference in dealing with the difficult decisions about whether extradition should take place. What efforts are the Government therefore making to work with the US, and other countries where we have existing extradition arrangements, on the development of new arrangements to deal with these emerging crimes?

I know that the Minister will also be aware of the case of Richard O’Dwyer, whose extradition was approved following charges brought in the US for conspiracy to commit copyright infringement and criminal copyright infringement following his creation of a website. Not being particularly technical myself, I understand that the site included links to other websites where the copyright infringement was alleged to have taken place. In Richard O’Dwyer’s case, it has been noted that had the forum bar been applied at the time his extradition may not have been approved. Does the Minister feel that the proposals announced by the Home Secretary today fully address the issues raised by the O’Dwyer case, including when offences may have been committed in the UK at the same time as in another jurisdiction?

I have just one further point, which comes back to the discussion we had yesterday about the European arrest warrant. I understand the concerns that have been raised but I also understand and appreciate that this is incredibly valued, as I highlighted yesterday and as law enforcement agencies in this country have highlighted as well. I worry about losing those powers without having anything immediately in their place. The Minister said in repeating the Statement that the Government wanted to work with other European countries to seek changes to the European arrest warrant. Is he aware that work is already ongoing to make changes to and review the operation of that warrant? Does he know what contribution the UK Government are making to those discussions and deliberations at present? My fear is that when other European countries see that we want to withdraw from the European arrest warrant, it will make our power to influence discussion and deliberation of that issue at this time more difficult. If we decide to opt out and then try to opt back in, we may lose the opportunity to influence the changes that—there is some acceptance of this—need to be made. I hope that the Minister is able to address some of the questions I have raised.

Police and Crime Commissioners: Elections

Baroness Smith of Basildon Excerpts

Thursday 11th October 2012 Lords Chamber

Asked By

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what assessment they have made of the likely turnout in the elections for police and crime commissioners.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the election of police and crime commissioners will be one of the most significant democratic reforms of policing in our lifetime. We want and encourage everyone to have their say and we are confident that come 15 November the public will not only be aware of the elections but will have the information that they need to make their choices.

[Baroness Smith of Basildon]

My Lords, I welcome the noble Lord, Lord Taylor, to his new role at the Dispatch Box and look forward to many long and interesting discussions with him. However, I found his Answer somewhat disappointing. The Reform Society fears an 18.5% turnout for these elections. That is not surprising, given that the elections will be held in November when it is cold, wet and dark, and that the candidate information has been made available online instead of in the normal leaflets for every household, as in similar elections. May I press the noble Lord on this point and ask him what level of turnout he would accept as evidence that the Government have respect for the police and the candidates and that this is a serious policy and not something dreamt up on the back of an envelope?

Public and Commercial Services Union: Strike Action

Baroness Smith of Basildon Excerpts

Tuesday 24th July 2012 Lords Chamber

[Lord Henley]

As my noble friend will be well aware, we have full contingency plans in place, just as we did on the other four occasions on which the PCS has called one-day strikes. On all those occasions we managed not only to secure the border appropriately but to prevent excessive queues. We hope to do that again tomorrow, but we hope that the PCS will see reason. Our doors remain open to negotiations until the last minute but, as I said, we are also taking legal advice on this matter.

[Baroness Smith of Basildon]

My Lords, although we would all support an Olympic truce between the Government and the unions, I think the Minister does this House a disservice when he tries to imply that the leader of the Labour Party, Ed Miliband, supports the strike when he has made it quite clear, as the Minister and other noble Lords will know, that he does not support the strike. We also recognise that there are real long-term issues about queues at border controls, particularly for non-EEA visitors. Yesterday the National Audit Office blamed the Government for cutting too many staff—more than even the Government planned—far too quickly. We now have a Bermuda Triangle of lost asylum cases being written off, mounting casework backlogs, and even fewer foreign criminals being deported. I appreciate that there are shorter queues at border controls for the Olympics, but can the Minister guarantee that, following the NAO report, the Government will treat this issue as a priority and ensure that there are enough staff and resources to do the job in the long term?

Late Night Levy (Application and Administration) Regulations 2012

Baroness Smith of Basildon Excerpts

Thursday 19th July 2012 Lords Chamber

[Lord Henley]

That the draft regulations be referred to a Grand Committee.

[Baroness Smith of Basildon]

My Lords, I had understood from press reports and a Written Ministerial Statement last night that, in light of a Supreme Court judgment yesterday, immigration orders or regulations would be laid today. Can the Minister enlighten us as to what form those may take and when noble Lords are likely to have sight of them?

[The Minister of State, Home Office (Lord Henley)]

My Lords, I issued a Written Ministerial Statement last night in response to that judgment from the Supreme Court. I can give an assurance to the noble Baroness that we will be laying orders later today and that they will be available in the Printed Paper Office.

Olympic Games: Security

Baroness Smith of Basildon Excerpts

Monday 16th July 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for coming to the House this evening to repeat the Statement.

I have listened carefully to the Statement and in it the Home Secretary says that following a report from HMIC in February 2012, LOCOG and the Home Office monitored delivery throughout the following months. How was that done? What were those checks and monitoring systems that the Government put in place to ensure that security personnel were being trained and would be in the right places at the right times? Did the Home Office and LOCOG fail in their monitoring, or did the Government and LOCOG just hand over the entire security operation to G4S with no checks or monitoring other than a government Minister sitting in meetings listening to false assurances from G4S?

I noted what the Home Secretary said in her Statement about the Minister, James Brokenshire, not receiving information about security staff shortages. So what was the purpose of James Brokenshire attending those meetings? What happened at those meetings? Did LOCOG and the government Ministers just sit there and listen to assurances from G4S that it was on target and everything was okay? Did anyone ask for evidence that that was the case?

Did the Government say, “Is everything going to plan and on time?”. Did G4S say, “Yes”, and did the Government just say, “That’s okay”? If the Home Secretary’s Statement, repeated in your Lordships’ House, that the Home Office and LOCOG weremonitoring delivery, is accurate, it is hard to understand the Home Secretary’s Statement, when she says later:

“I want to be clear that this”—

that is, Wednesday 11 July—

“was the first time that G4S admitted to any Minister that it would not be able to deliver the numbers of security personnel that it had promised”.

It is essential that we know about the monitoring arrangements to which the Home Secretary refers in her Statement. Will the Government publish the minutes or notes of the meetings that James Brokenshire attended on behalf of the Home Office? Can we have an assurance that that is not the usual way that the Government do business with business partners?

When the Home Secretary was asked earlier whether she could confirm the exact number of security staff that G4S would provide for the Games, she appeared unable to do so. I have been given a transcript of what she said in the House of Commons. She said:

“They are, they are, we are, continuing to accredit personnel for G4S and they are continuing to schedule personnel for the Olympic games and the precise balance of the numbers … they will be providing … will become clear over the next few days. But this is, this is, well, I suggest to Honourable Members opposite that they actually look at the statements that have been made by G4S about how they are dealing with this issue and what the problem is and the suggestion that somehow … this is a problem for us is not the case”.

What number of personnel is G4S now saying that it will be able to provide for the Games? What action are the Government taking to ensure that we can all have confidence in the training, support, management and adjustable arrangements for security staff to be in the right place at the right time?

Can the Government assure your Lordships’ House that the shortfall of security staff now being provided by G4S will not result in any additional cost to the public purse? I am greatly relieved that contingency plans were in place, although, obviously, government failures to identify the problem meant that they are having to be used very late in the day. I have great confidence in our Armed Forces—more than in G4S or the Government—but are the Government satisfied with the accommodation arrangements being provided for the Armed Forces, as this is being done at very short notice? I have received a number of reports—I would be happy to receive assurances that they are not correct—of soldiers having to be put up in shopping centres, school gyms and hurriedly constructed large shed-type accommodation. What will be the costs of those and who will meet them?

The Government have assured the Armed Forces that they will not be out of pocket for any family holidays or events that they have booked. That is small consolation for a soldier who has been in Afghanistan and now sees his leave cancelled to undertake security arrangements for the Olympics. Can you imagine how much he would enjoy being with family and friends? Who is meeting those costs?

There is great pride in London hosting the Olympics, and we all want it to be a fantastic experience for everyone who attends and takes part, but the Government really have to get their act together.

Justice and Security Bill [HL]

Baroness Smith of Basildon Excerpts

Monday 9th July 2012 Lords Chamber

[Lord King of Bridgwater]

I have now unlearnt something which I thought I had learnt, and I am grateful to the noble Lord for his intervention. I certainly think that when we come to Amendment 3 there are strong arguments for moving in that direction, provided that the arrangements can be established to ensure security of intelligence. I think that the noble Lord, Lord Campbell-Savours, was with us when we went to Washington. One is struck by the number of Senate committees there. The Senate Select Committee on Intelligence is held in a totally secure room, and there are badges for all 19 government agencies that the committee oversees as part of its various responsibilities. It is a completely different facility. If, as I understand it, the proposal is that the facilities will now be provided by Parliament, as opposed to the separate facilities that existed in the Cabinet Office, it will be necessary to think about what sort of facilities will match up to the requirement for total security and the proper safeguarding of intelligence.

[Baroness Smith of Basildon]

My Lords, one thing that the debate has shown so far—and this will also apply to the debate on the next amendment—is that the Government have not yet done enough to satisfy your Lordships that the arrangements for independence for the committee are adequate. This debate has been interesting. I think I understood the noble Lord, Lord King of Bridgwater, correctly when he said that he was quoting me quoting the Deputy Prime Minister on the “veneer of expertise”. I in no way associate myself with that comment, nor with the one that I am told the Liberal Democrat spokesperson from the House of Lords made on TV today—that we are a House full of dead-beats and has-beens. I think that this debate will prove how wrong both those comments are.

The arrest just last week of alleged Olympic terror plot suspects was a clear reminder of the vital and largely hidden work that the intelligence and security services undertake. Part of the discussion that we are having now is based on the fact that the strength and health of our democracy in the UK depends on a very fine balance between the Government, who are empowered to protect our national security, and the strength, credibility and authority of the institutions that have oversight of that power.

I suspect that during the course of Committee the majority of debate will understandably be reserved for the changes proposed to the judicial element of that oversight. However—and I make this point very strongly—our system of democracy is, unlike that of the USA, based on the concept of parliamentary sovereignty. That means that Parliament, as representative of the public, is the ultimate check over other government institutions—not the Prime Minister or the Government. A powerful security service demands equally powerful and independent parliamentary oversight, and the Intelligence and Security Committee is a very important plank in this oversight mechanism. However, it is widely recognised that, while the committee has in some ways developed its remit in response to the changing nature of government intelligence and counterterrorism activities, the law has not kept pace with that change.

The committee was set up in 1994. We saw in its 2009-10 annual report that the committee itself recognised that reform was necessary to maintain public confidence in its oversight function. It asserted that corporate knowledge of the committee’s procedure within government had been lost over time and that in some cases this had led—this is a serious point—to misunderstandings about the statutory independence of the committee and its work and about the nature of the relationship between the committee and the Prime Minister. The committee has suggested a number of reforms which I think we will hear more about and discuss today.

--- Later in debate ---

[Lord Butler of Brockwell]

I accept that, and we will be coming to some other amendments where I will be arguing that we should have our cake and eat it. We are entitled, however, to have our cake and eat it. For the reasons I have been arguing, I do not think that it is advantageous to have this as a Select Committee because I do not think it can be like any other Select Committee. I do think, however, that it requires special arrangements to give it the privileges of a Select Committee, and I do not withdraw that argument.

[Baroness Smith of Basildon]

My Lords, the noble Lord, Lord Campbell-Savours, has done this Committee a service in degrouping his amendments. It is a broader and deeper debate than the one we had on the first two amendments. It has been extremely helpful. The noble Lord, Lord Elystan-Morgan, hit the nail on the head when he described it as a useful debate with a lot of consensus. I disagree with the noble Baroness, Lady Hamwee, who said this was a polarised debate. I am not convinced that it is. This is less about what we expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the kind of objectives we are seeking. I wrote down a couple. The idea of a veneer of expertise has now been firmly laid to rest. I hope that we will not hear that expression again either in your Lordships’ House or outside. I was intrigued when the noble Lord, Lord Deben, mentioned to the Minister the comments from civil servants. I felt the ghost of “Yes Minister” creeping into our debates. Civil Service Ministers sometimes have to make a decision and challenge civil servants on some issues.

The areas of broad agreement were the independence from the Executive and the issue of parliamentary privilege. I thought the comment of the noble Lord, Lord Campbell-Savours, about the power to take evidence under oath was a powerful one. Security of information caused considerable concern for those who are not keen on having a Select Committee structure but who also, like the noble Lord, Lord Campbell-Savours, want to protect security of information if there is any question on that. There is the same point even if the structures are different.

The issue of public hearings came up. I am not sure how relevant that is in terms of structure in that amendments have been tabled about the kind of public hearings there could be and what form they could take. My own view is that they are valuable. They certainly should never be automatic but we have that debate coming up. I am unclear whether a Select Committee would have to have public sessions unless the Committee wanted to have it. It is the best structure for achieving that.

We have also heard from a number of noble Lords about ensuring public confidence in whatever structure the Government decide to go ahead with. It was helpful that in the last debate the Minister, if I understood his words correctly, said he wanted to look at the best means of achieving these ends and consider all implications. I hope he can say that in the context of this debate as well. It has been a broader debate in that noble Lords have been thinking carefully about powers, independence and structure, and I hope the Minister finds that debate and those comments and views helpful.

Public confidence is an issue to take into account. It can be well served by public hearings or it can be badly served by public hearings, and we will debate that further today. Public confidence does have an impact on how sensitive or highly confidential information that is relevant to national security is dealt with. So I am interested in what the Minister has to say. I hope that he will take on board all the comments made in the last debate and in this debate. I hope that he is smiling because he agrees with me rather than because he is amused by what I said. I hope that he will say—as I hope I would say if I were sitting in his seat—that he will take this away and take into account not only the comments that were made in the previous debate but the wide range of views expressed in this debate. They are moving in the same direction and seek that, whatever structure the Government want to proceed with, the comments of the House should be taken into account to ensure that the Government get it right, protect national security, safeguard sensitive information and also secure parliamentary independence and public confidence.

[Lord Henley]

My Lords, I was smiling at the noble Baroness only because I thought that she was trying to write my speech, which was not necessarily her job at this stage. I agree with her about several things. It has been a very useful debate. The 11 speakers—12 including myself—expressed a range of views. As the noble Lord, Lord Elystan-Morgan, said, we are all heading in the same direction and all trying to ensure, as a number of speakers put it, that there will be an appropriate degree of public confidence in whatever we set up.

I was very interested in the opening remarks of the noble Lord, Lord Campbell-Savours. He talked about the position of many colleagues in his party in 1989. Many of them are now distinguished members of his party. He stressed that all of them, to a man and woman, were in favour of Select Committee status for what became the ISC in 1994 under the chairmanship of my noble friend, and what is now being developed by the Bill. I was looking forward to hearing the official view of the Opposition on whether Select Committee status was the appropriate road to go down, but I heard no answer on this from the noble Baroness later in the debate, nor on what the collective view of the party was. It might be that there are now different views, because 1989 is a considerable time ago.

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[Baroness Hamwee]

I am saying that the committee should consider whether there is a reason not to hold a meeting in public. My approach to this would be to say that each move into closed session should be considered quite positively. I look at it the other way round; it is a different philosophy and I accept that.

I have provided in Amendment 14—these are probing amendments—that a determination could be made to apply to more than one meeting. I cannot believe, given the committee’s obligation to the public, that every meeting should be held privately unless there is a good reason to hold it in public. As I say, it is a difference in philosophy. Amendment 14 is, as I say, probing, and I accept that a decision could be taken to cover more than one meeting.

Amendment 15 is rather different. I think that there is a place for something like a public question time. The noble Baroness’s amendment suggests annual hearings with the heads of the agencies and the Secretary of State, and I think that that is a good idea. In both of our amendments, we suggest that the public should have a hand in setting the agenda of the committee. I beg to move.

[Baroness Smith of Basildon]

My Lords, I shall speak to Amendment 17 and then perhaps say something about Amendment 15. The noble Baroness, Lady Hamwee, might have misunderstood our intention in Amendment 17, because I think that our intention differs very much from hers in Amendment 15. Amendment 17 is essentially, as she said, intended to probe the idea of public hearings. This idea has had a mixed response in your Lordships’ House in both today’s debate and earlier debates. What is vitally important is that the public should have confidence in the system of oversight of our intelligence and security services. I think that that has been quite clear in the early amendments to the structure and kind of committee that we are seeking. As has also been previously mentioned, the ISC itself has admitted that reform is needed urgently. One of the areas of reform that it stresses is the need to improve public confidence in its work and in its ability to function as a strong and independent check on the work of the intelligence community. Just as we would say that justice does not just need to be done, it must also be seen to be done, the scrutiny role of independent checks and balances does not just have to be done, it must also be seen to be done in order to create public confidence. I have to say to the Minister that, looking at the legislation before us, I do not think that the Government have given enough thought to the role that visibility can play in building up that kind of public confidence.

We have heard mixed responses to the public hearings held in the United States by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence with the heads of the intelligence community. Those hearings in public session—many of them televised—are a significant aspect of this issue and have produced some important public admissions by the agencies’ heads. However, I think that there is a risk of them being seen as stage-managed, as we heard earlier from the noble Marquess, Lord Lothian.

We have to recognise that a large part of the committee’s work involves hearing evidence of a highly sensitive nature that cannot safely be publicly disclosed. However, it is important to move towards a system where public hearings are considered not automatic but more routine. I do not go quite as far as the noble Baroness, Lady Hamwee, although I think that we are going in the same direction, as I do believe that such hearings should be accepted more and be more routine. Therefore, Amendment 17 would expressly provide for the ISC to hold public hearings where it is judged that there is no significant risk of the disclosure of sensitive information, as defined by the Bill, or information that risks undermining the interests of national security. The noble Lord keeps chastising me for the wording of the amendment but I hope that he understands the theme that we are putting forward here. In effect, the amendment sets the same threshold for judging the risk of the disclosure of information in public hearings as the Bill does for the disclosure of information to the committee.

Perhaps a more appropriate set of conditions could be used here to ensure that public hearings do not lead to the jeopardising of our national security or of the work of the intelligence services. That is something that I would be happy to discuss. However, it is the principle of routine public hearings that we are trying to establish with this amendment. Similarly, annual public hearings with the heads of the intelligence services, as provided for in Amendment 17, would, as they do in the United States, send a very public signal about the accountability of our intelligence community to Parliament through the ISC.

There is perhaps just a slight difference of emphasis in our amendment compared with the noble Baroness’s Amendment 14, in that we do not think that public hearings should be automatic. However, I am slightly curious about Amendment 15 and the suggestion of a public question time. I wonder whether that would change the role of the ISC. It seems to me that its role is very specific—that of oversight of the intelligence community and intelligence agencies—and I am not sure what would be gained by putting its members into the public eye, with them being questioned by the public, as I think is the noble Baroness’s intention. I should have thought that public confidence would be achieved by members of the Intelligence and Security Committee being seen to do their job robustly and ensuring proper scrutiny and oversight of the intelligence community. This seems to be more about oversight and scrutiny of the intelligence committee by the public, although I should have thought that that was a job for Parliament rather than for the public. I should be interested to hear the noble Lord’s comments on the amendments.

[Lord Skelmersdale]

My Lords, I wish to say a tiny word on Amendment 17. I note that it begins:

“The ISC may decide to hold some of its proceedings in public, subject to sub-paragraph (2)”,

and so on. I ask the Minister whether there is anything in the Bill to prevent the ISC meeting in public, should it so wish.

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[Baroness Smith of Basildon]

My Lords, I did not hear what the noble Lord said as he turned away from the microphone. Will the noble Lord repeat what his concern was because we missed it on these Benches? I did not hear what his objection was.

[Lord King of Bridgwater]

The point was that it may be decided to hold some proceedings in public which presumably would be televised as well. The noble Lord, Lord Campbell-Savours, referred to a point that I was also going to refer to. The annual appearance of what was previously the ISC was the publication of the annual report. We used to have a press conference after that and it was televised and open to all the journalists. Of course there could be an inquiry of one sort or another that came outside the annual cycle. The classic illustration of that was Mr Mitrokhin and the Mitrokhin report. I have a copy of the press release that we put out on 13 June 2000 on the Mitrokhin report.

It is interesting about pushing back the boundaries. This is pervasive and accepted by the Government in the whole concept of the initial clauses of this Bill on the wider remit that has grown for the ISC. The committee agreed to conduct this inquiry on the understanding that it would have access to all the relevant documents, including advice given to Ministers as well as evidence from key witnesses. We were given this access. This was never included in the original Bill and was an illustration of the way in which the committee gradually covered a wider area and had greater access. The idea that the committee hides away in private and is not prepared to appear in public is not right.

Amendment 17, in the name of the noble Baroness and her colleagues on the opposition Front Bench, states that the committee,

“may decide to hold some of its proceedings in public, subject to sub-paragraph (2)”.

Sub-paragraph (2) states:

“The ISC may not hold public hearings … if it might lead to the disclosure of—

(a) sensitive information”.

That is the whole problem. As the noble Lord, Lord Gilbert, who has now joined us as a former member of the committee, said, if you have an effective committee with effective questioning, where may it lead? If you are discussing serious issues, you cannot be sure at the start of it. You may have started out with a wonderful public agenda but things may emerge in the evidence that make it thoroughly undesirable at that stage that it is held in public. I was trying to think what the issues are because I was myself in favour of trying to see whether the committee could have the occasional public meeting, not as an obligation and having to explain each time why it was not having it in public, but just to show that there are issues, that it is an effective committee and that it could hold the heads of the agencies to account.

One of the problems when we started was that the heads of the agencies did not always want to appear in public and have their faces too easily recognisable. That situation changed and the noble Baroness, Lady Manningham-Buller, was an exception. She was extremely good at bringing a more public face to the essential activities of MI5. I wondered about the sort of subjects on which we could see the committee in action. One of them might be recruitment for the Security Service: the issue of whether it is recruited from too narrow a sector of society, the efforts that the agency is making to recruit across a wider section of community, the importance of diversity, and the importance of access to a wider range of languages and of being involved with and recruiting from all sections of our multicultural society, which is so important at the present time. That is the sort of issue—I got a small nod as I said this—that I thought could be handled in a public hearing.

I would like to have had a public hearing on the accommodation arrangements of GCHQ and our criticisms of the control of that project. This was one of the biggest scandals that we uncovered during our time in Government, where the estimate for the expenditure on the new facility in Cheltenham, the donut, which is now well photographed, rocketed beyond an initial brave estimate of £20 million and ended up closer to £220 million. Issues of accommodation are perhaps relevant, although you can get bogged down in all sorts of tabloid sensations. One of the accommodation issues was the cost of the trees on the balcony of SIS and who was paying for those. The committee has to be careful not to get bogged down—we always took this view—in chasing the individual tabloid shock-horror story of the week and to concentrate instead on the issues that are of fundamental importance.

There is a real difficulty in trying to say that in principle the hearings should be in public. My noble friend Lord Lothian illustrated to those who were not at the earlier session what happened with the Senate Intelligence Committee and how it was a put-up job with planted questions and planted answers because that was all it felt safe to handle in public. I do not think that helps credibility and it looks as though the committee is just part of the conspiracy.

I do not support the idea that in principle there should be public hearings and that the committee should explain why if they are not, which is the theme of these amendments. Public confidence is best achieved by taking the opportunity where possible for a public hearing and showing the sort of way that the committee operates but not having it as a presumption in every case.

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[Lord Campbell-Savours]

I am glad the noble Baroness did not stipulate that the hearings should be in public because that would make it quite impossible for us to carry out this function, which in many ways I have great sympathy with. If we had had the opportunity when I was a member of the committee to interview proposed heads of the agencies prior to them taking over responsibility for the agencies, it would have been helpful to the committee. In so far as it had not been in public, no damage would have been done. Certainly we would have been able to make our concerns or satisfaction known to the agency, and during the questioning of the proposed appointee we could have raised subjects that would have given us, certainly in one case, a little more reassurance than perhaps I felt I had when the particular person was appointed. I think there is merit in this amendment as long as the hearings are in private.

[Baroness Smith of Basildon]

My Lords, the issues that have been raised are the very ones that I listened to the noble Baroness to hear as she moved her amendment and to try to see what the aim was. Her amendment does not mention public or private, although in her original comments she spoke of public hearings. It was not until the noble Lord, Lord King of Bridgwater, intervened that she conceded that there could be private hearings, which have more value than a public hearing would. I am no wiser and very interested to hear what the Minister has to say. I assume that he will accept the principle. My favourite bedtime reading, the coalition agreement, includes a specific commitment to strengthen the powers of Select Committees to scrutinise major public appointments. I should have thought that this comes under the remit of a major public appointment. The noble Baroness might have done the House a service to tease out whether the Government intend to honour that part of the coalition agreement.

[Lord Henley]

The noble Baroness is right: there was that commitment. She also knows that pre-appointment hearings are a relatively new phenomenon. Since 2008, Select Committees have conducted pre-appointment hearings for a number of posts, and there is Cabinet Office guidance on the process and on who should be heard. The important thing to note about the list of pre-appointment posts is that the posts concern public bodies, such as the chair of Ofcom and the chair of the Social Security Advisory Committee. The most recent one that my department had an interest in was Her Majesty’s Inspectorate of Constabulary. There is no suggestion that the pre-appointment process has been used to appoint civil servants. Indeed, the noble Baroness is not suggesting that before appointment each Permanent Secretary should go before the appropriate Select Committee.

The heads of the intelligence and security agencies are Permanent Secretary-level civil servants.

Justice and Security Bill [HL]

Baroness Smith of Basildon Excerpts

Monday 9th July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, my question to the Minister is: what is meant by “proper” in paragraph 3(3)(b) of Schedule 1? One has to postulate a situation where a Select Committee, for example on health, asks for disclosure from a Minister, who says, “I would love to give you the information but it would not be proper—it would be contrary to propriety”. What does the word mean? Proper in what sense? Would it be immoral or illegal? What is the word supposed to convey? I simply do not understand and would be grateful if the Minister would help me.

[Baroness Smith of Basildon]

My Lords, I think that there is unanimity around the House about the questions that need to be addressed in connection with Amendment 24. Our concern is that the Government may have lowered the threshold for proving that information should be withheld. Under the Bill, the Secretary of State will decide whether information is too sensitive to disclose or is of such a nature that it would not be proper to disclose it to a departmental Select Committee. However, where the Intelligence Services Act 1994 prevents the Secretary of State vetoing the disclosure of information on grounds of national security alone, now national security is just one of the conditions under which the Secretary of State may use their veto. I support the amendment of the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler of Brockwell, because I share their curiosity about what a consideration that it is not proper to disclose information to a departmental Select Committee would mean in practice, and why the provision of it not being proper to do so is seen as a necessary alternative to non-disclosure on the grounds that the information is sensitive and affects national security. I would be grateful if the Minister would look at this again.

Amendment 25 in the name of the noble Baroness, Lady Hamwee, disallows the use of the ministerial veto on disclosure of information when it refers to conduct that would amount to a breach of international law. I am curious about how that would work in practice. Who would determine whether the conduct to which the information relates could amount to a breach of international law? I find it difficult to understand how a Secretary of State would make that judgment on the actions of her own Government. I understand the principle behind it but I am not clear how it would work in practice. If the Minister would explain what is meant by “proper”, that would be very helpful.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the noble Lord, Lord Campbell-Savours, suggested that this amendment was similar to the previous one. He is right, but we have been allowed to have a one-hour break to have something to eat between that previous amendment and this one. It is similar to that amendment. He also said that he was somewhat confused by it. He is not the simple Scottish lawyer that my noble friend Lord Lothian is, but my noble friend also got it right when he said that it was possible that the draftsman had got it wrong. If that is the case, obviously I will ask the appropriate officials to look at it again to ensure that we have got the drafting right.

Before I come to the substantive part of the amendment, may I also make it clear to my noble friend Lord Lester that we will try to address his points about general aspects of dealing with Select Committees between now and Report? I cannot give any guarantee of that but I certainly hope to do so.

There are a number of very long-standing conventions that have developed in Parliament in the relationship between Select Committees and successive Governments. Those conventions recognise that there are categories of information that may, in certain circumstances, be withheld from Select Committees on grounds of public policy.

The noble Lord, Lord Butler, asked for particular examples. All I can say at this stage is that examples of the type of information are given in the Cabinet Office guide Departmental Evidence and Response to Select Committees. Some noble Lords may know this guide by its other name, the Osmotherly Rules. I do not know those intimately but I look at the smile on the face of the noble Lord and I suspect that he was probably the one who drafted them some years ago. He shakes his head. But he knows them well. The categories of information set out in that guide include information about matters which are sub judice, information which could only be supplied after carrying out substantial research or at excessive cost, and papers of a previous Administration.

The sub-paragraph of the Bill that the noble Lords propose be left out and which my noble friend asks that we have the draftsmen look at again is a necessary part of the Bill. It provides a basis for withholding these categories of information from the ISC. If the relationship between the ISC and government is to reflect the relationship between a Select Committee and the Government, then it seems to the Government to be essential to have this significant aspect of the relationship.

The provision gives the Minister of the Crown discretion only to withhold material. In exercising that discretion the Minister would, of course, have regard to the provisions that the ISC has for keeping material confidential. For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. They have only been used sparingly in the past and we expect this to continue. However, it is important that those safeguards are retained.

My noble friend Lord Thomas also asked for the definition of “proper” in paragraph 3(3)(b). That is something I would ask that we look at again in relation to the concerns over the drafting of the Bill. With that explanation, I hope the noble Lord will feel it is not necessary to move his Amendment 24.

Amendment 25 would introduce a limitation on, or exception to, the powers of the Secretary of State or a Minister of the Crown to withhold information from the ISC, under paragraphs 3(1)(b) or 3(2)(b) of Schedule 1. The exception would apply wherever the information requested by the ISC relates to conduct which may amount to a breach of UK or international law.

Various noble Lords spoke very strongly about this at Second Reading, and I know there are concerns to ensure that the new ISC can operate as effectively as possible in future. Other amendments would obviously have the effect of removing entirely the powers of the Secretary of State or a Minister of the Crown—we discussed that in an earlier amendment—to withhold information from the ISC. This amendment is an alternative, therefore, to those amendments.

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[Lord Lloyd of Berwick]

My Lords, I regret that I was not able to take part in the Second Reading of this Bill. I support Amendment 32 and suggest that in one very minor respect it may not go quite far enough. There used to be a body known as the Security Commission, on which I served for some years. I succeeded the noble and learned Lord, Lord Griffiths, as chairman of that body and was in due course succeeded by the noble and learned Baroness, Lady Butler-Sloss. Our main function was to investigate and report on cases of espionage—selling secrets to the Russians and things of that kind. We were appointed by the Prime Minister to investigate particular matters and, before we were appointed, we had to have the consent of the leader of the Opposition. The noble Lord, Lord King of Bridgwater, will remember those days. I think that it can be said that we did the state some service. Since the end of the Cold War, espionage is no longer the problem that it was, certainly not in the same way. Therefore the Security Commission has not sat for some years.

I suggest that it is possible that such cases might arise again in the future. If they did, surely the new security committee would be the obvious body—the ideal body—to carry out such an investigation. That being so—if it is so—I am concerned that Clause 2, even with the amendment suggested by the noble Lord, Lord Butler, might not be quite right to enable that to happen. It might or might not be, strictly speaking, an operational matter of MI6.

My suggestion would be to add a very few words to Clause 2(4). After the word “functions”, one could add, “or the functions formerly performed by the Security Commission”. That would be in line 20. Future historians would no longer have to worry about whatever happened to the Security Commission and we would have given that body what one might call a decent burial. I had drafted an amendment to that effect, but I was too late to put it down this morning. I would be happy to move such an amendment on Report, if it were to find favour.

[Baroness Smith of Basildon]

My Lords, this certainly seems a very sensible and practical group of amendments. Amendment 30 would remove the Prime Minister’s involvement in the assessment of whether a matter that the ISC wished to consider satisfied the criteria of being of significant national interest and not part of an ongoing operation. I fully support the extension of the ISC’s statutory remit to include particular operational matters; it is a function that the committee, in practice, already performs. We also understand the necessity of constraining this remit. I think that the noble Lord, Lord Campbell-Savours, in speaking to his amendment, made that point, too. It is necessary to ensure that the committee’s work is focused on areas of significant national interest and does not jeopardise ongoing operations. The determination of whether an operation is of significant national interest and whether it is not currently ongoing are objective judgments. One is a decision about what is of interest to the public, which the committee is surely best placed to judge, and the other is a statement of fact, which would simply involve consultation with the relevant government agencies. It is not a process of negotiation with the Prime Minister.

It is unclear to me why this assessment cannot be left to the discretion of the committee without needing the involvement of the Prime Minister. If the key point of the reforms in this legislation is to establish a clearer independence of the committee from the Prime Minister and a closer connection with Parliament, then requiring the ISC to seek the permission and the agreement of the Prime Minister before determining whether a specific operational matter lies in its remit sends a completely wrong signal about the independence of the ISC.

We also give full support to Amendment 32, which would provide important flexibility to the committee’s powers to view specific operational matters. We have consistently argued that the ISC should be given the power to review specific operational matters, such as control orders, while recognising that limitations may apply with respect to ongoing operations where the committee’s work may jeopardise the integrity of those operations. An absolute ban on considering any ongoing operational matters seems to us to be unnecessarily heavy-handed. It is easy to imagine particular cases of significant public interest, perhaps where the majority of the operation has been concluded but there is still some ongoing activity that cannot be reviewed by the committee, even if the Government agree that there is no risk. Amendment 32 would be a highly sensible alternative to the blanket ban by allowing the committee, with the agreement of the Secretary of State, to review certain ongoing operations. I agree with the noble Lord, Lord King of Bridgwater, that there seems to be a drafting deficiency. I hope that the Minister can give a more positive response to this group of amendments than he was able to for the last one.

[Lord Henley]

My Lords, first, if there are any drafting concerns about this Bill, as I hope I made clear at an earlier stage, we will be more than happy to look at them. This is what this House does very well and the debates that we have been having this afternoon are indicative of that. We will take these points on board and the similar drafting points made by my noble friend Lord Lothian.

Secondly, I understand that the noble and learned Lord, Lord Lloyd, tried to table an amendment earlier today but I think that he missed the boat. I suppose that he could still have put down a manuscript amendment—fortunately, he decided not to—but he will come back to that in greater detail on Report. Certainly we will listen to his remarks in due course about the Security Commission, which he said that he chaired and which was later chaired by the noble and learned Baroness, Lady Butler-Sloss.

I hope that the Committee will bear with me if I explain in some detail just what we are trying to do and what we think is wrong with the amendments. I hope that noble Lords will also accept that, as I just said, we are more than happy to look at matters relating to drafting again, because we want to get this right.

The Bill extends the ISC’s statutory remit and makes clear its ability to oversee the operational work of the security and intelligence agencies. This is an important and significant change and will be key to ensuring that the ISC continues to perform an effective oversight role. With this formalisation of its role in oversight of operational matters, we would expect the new ISC to provide such oversight on a more regular basis.

In the Bill, the ISC may consider any particular operational matter, but only so far as the ISC and the Prime Minister are satisfied that the matter is not part of any ongoing intelligence or security operation and is of significant national interest. The ISC’s oversight in this area must be retrospective and should not involve, for instance, prior knowledge or approval of agency activity. Consideration of the matter must also be consistent with any principles set out in, or other provision made by, a memorandum of understanding. We will discuss that again in due course.

Of course, the ISC is not the only body that oversees the operational activity of the agencies. The Prime Minister has overall responsibility within government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary and, for the Secret Intelligence Service and GCHQ, with the Foreign Secretary. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service; similarly, the Foreign Secretary has his accountability.

The Intelligence Services Commissioner provides oversight of the use of a number of key investigatory techniques employed by the agencies and by members of Her Majesty’s forces and Ministry of Defence personnel outside Northern Ireland. The Interception of Communications Commissioner’s central function is to keep under review the issue of warrants for the interception of communications.

On Amendments 30, 31 and 32, the first amendment would have the effect of leaving it solely to the judgment of the ISC to decide when the criteria for considering a particular operational matter are met. The noble Lord, Lord Butler, is a current member of the Intelligence and Security Committee and, as such, speaks from a position of great knowledge. However, I hope that he would agree that the judgment as to whether an operational matter meets the criteria is one that should be for both the ISC and the Government and not just for one or the other. It is very important that we get this judgment right.

Crime and Courts Bill [HL]

Baroness Smith of Basildon Excerpts

Wednesday 4th July 2012 Lords Chamber

Without this information, the claims made by the UK Border Agency and the Minister—even in respect of the sample of 363 cases—regarding the need for and use of the right of appeal are unsubstantiated. Neither we nor ILPA are aware of any new information available that would support their case, which is not evidence-based. I beg to move.

[Baroness Smith of Basildon]

My Lords, I will speak to our Amendments 148AA and 155EA. These are probing amendments into what I think are very serious issues. The Minister will recall that I raised concerns about these matters at Second Reading. I listened with great care to what the noble Lord, Lord Avebury, had to say, and I fear I may duplicate some of his comments, but only where they are worth duplicating and I think it useful to your Lordships’ House.

Our amendments would delay the commencement of Clause 24 until the Independent Chief Inspector of Borders and Immigration has completed a report on entry clearance decision-making within the UK Border Agency for family visit visas, which retain the right of appeal. The Minister will recall that I drew some comparisons at Second Reading with the issues that had arisen where the right of appeal had already changed in other visa applications.

It is worth rehearsing some of the difficulties, delays and problems that we have seen with initial decision-making in family visitor visa decisions. In 2010-11, 38% of the appeals against family visitor visa decisions were successful—over a third of the decisions were overturned on appeal. The noble Lord previously said that that was because in many cases people had provided wrong information. I will come on to that point but I do not think it is relevant in many cases. This seems to be a systemic problem and the Government cannot address the problem of inaccurate and wrong decisions being made by trying to change the rules. By removing the right of appeal, you cannot sweep under the carpet the fact that so many decisions have been appealed successfully.

Family visitor visas are an important way for many British communities to preserve family and cultural links with other countries. The kinds of applications we are talking about are for family members to attend family occasions such as weddings and birthdays; there can be urgent cases, many with a compassionate element, such as needing a visa to visit a sick relative or even attend a funeral. These are not the kind of people who are going to bring vexatious appeals against the Government. Appeals are brought in these cases to right a wrong, to overturn a wrong decision.

It is worth listening to what the Independent Chief Inspector of Borders and Immigration has said on this issue. In 2011 he reported that in 33% of cases he reviewed, the entry clearance officer had not properly considered the evidence that was submitted. Why should that 33% of people who have not had their applications properly considered be forced to resubmit an application because of chronic administrative errors within the UK Border Agency? It is penalising those who have been refused through no fault of their own but through poor decision-making.

As I mentioned earlier, the Government argued that,

“63% of appeals are lost entirely because of new evidence introduced at the appeal stage”.

That comment was made by the Immigration Minister, Damian Green, when he gave evidence to the Home Affairs Select Committee. I again look back at what John Vine, the chief inspector, noted in his report: in the 16% of cases reviewed, applications had been refused on the basis of a failure to provide information of which the applicant could not have been aware at the time of making their application.

It is true that in many cases, submitting a new application is quicker than appealing a decision, but the Government have failed to address the fact that, when a decision is appealed it allows, particularly in those highly urgent and exceptional cases, Members of Parliament and advocates to intervene directly with the Home Office on their behalf and expedite decisions. If they do not know, or are not aware, as the noble Lord, Lord Avebury, said, what information is required before submitting the application, that is a poor reason for the Government to change the rules. The wrong information was submitted, and it should be very clear to applicants what that information should be.

When a wrong decision has been made, it is a matter of integrity that it should be addressed. The UK Border Agency should also consider when decisions have been wrongly made and address the problems within the organisation that has allowed that to happen. To remove appeal rights of applicants who have been wrongly refused because of Home Office errors is unfair. It also leaves applicants with no indication of how they should amend their application the second time around, and the possibility that the same errors or omissions could continue to be made. It also neglects the added burden of cost that many applicants face. The cost of an appeal is roughly the same as an application but the costs of making an application go beyond the fee. I am sure that the Minister and other noble Lords will be aware that family members travel hundreds of miles and cross borders to submit in person an application and the documents required. It is significant that when refusals are made on the basis of an allegation that an individual has made a false statement in the application, it can result in that individual being refused entry for up to 10 years. If there is no right of appeal it leaves no way to address the issue. Making another application cannot undo the fact that the individual has been banned for the next 10 years. That is a significant failing in the clause as it stands, particularly when we see how many errors are made in decision-making.

Most importantly, removing the full appeal rights removes pressure on the Home Office to improve the situation. We want a reduction in errors in decision-making. It is bad for the Home Office, and it is certainly bad for the applicant. I raised in a Question in your Lordship’s House not that long ago the report from Sir John Vine: A Comparative Inspection of the UK Border Agency Visa Sections that Process Applications Submitted in Africa. He looked at four areas. There was some good news and some improvements, but I found it fairly shocking. The most difficult part was when he said:

“Despite my making recommendations in previous inspections to help the Agency improve, I found that little progress had been made in a number of areas. This is especially frustrating considering the Agency has accepted the recommendations and yet I continue to identify the same issues”.

How frustrating is that for the chief inspector of the UK Borders Agency whose sole purpose is to want the agency to improve its decision-making? Yet, he is making the same recommendations; the agency agreed those recommendations and that there should be a plan to address the issues. He then has to make the same recommendations the next year and the year after that. He then said:

“In summary, I found performance varied significantly across the four posts inspected in the Africa region. I was disappointed to still find a clear need for improvement in the quality and consistency of decision making. I have made 12 recommendations, a number of which I have made before, in previous reports”.

It is very difficult to understand why this kind of measure is being brought in when we know that the decision-making is inadequate and not up to scratch.

There is another, slightly different side to this. Something caught my eye earlier today concerning the failings in visa controls and considerations. It was about not family visas but other visas. Mr Vine’s inquiry looked at 100 visa applications from Pakistani nationals and found that there were cases where entry was granted when it should not have been and cases where it was not granted where it should have been. Both are equally wrong and I am sure that that is an issue that the Minister wants to address.

I find it very difficult to understand why the Government want to remove the right of appeal for family visit visas when they know that the decision-making is inadequate, that many mistakes are made and that the consequences for those individuals are severe. The amendments that we are dealing with today are intended to find out how the Government intend to improve entry clearance decision-making within the UKBA and ensure that individuals are not unfairly penalised because of systemic failures if their full right of appeal is taken away. As things stand at the moment, significant harm is being caused to those individuals because of the quality of the decision-making.

[Baroness Hamwee]

My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.

There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.

Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.

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[Lord Henley]

My Lords, I am reminded that the figure I quoted originally was £107 million, so we are talking about a difference of £5 million between myself and my noble friend, which is real money. However, I still promise to write to my noble friend on these matters and to try to bring her greater clarity.

[Baroness Smith of Basildon]

My Lords, I appreciate that the Minister seeks to reassure me and I wish that he could. However, unfortunately, he has not. There are a number of issues. If, as he points out, it would be quicker, cheaper and easier for everybody concerned—the Government and all the applicants—for there to be no appeals process, why does everybody not welcome this with open arms?

As I pointed out in my earlier comments and as was pointed out by the noble Lord, Lord Avebury, and the noble Baroness, Lady Hamwee, it would be quicker, cheaper and less onerous if so many wrong decisions were not made in the first place. I imagine that those appeals that were not upheld were much easier decisions to make if the application was turned down and the appeal rejected. I am very concerned about those where a wrong decision is made and the appeal is successful because of the wrong decision. I know the noble Lord says that in many cases it is because new information is provided, but it would be very simple to make it absolutely clear what information is required in the first place. That would make the whole application process much quicker and more efficient.

The other problem with making new applications is that there is no opportunity for advocacy or for people to make representations on an applicant’s behalf. I made the point earlier that if somebody is refused and the decision-maker says that they gave inaccurate or wrong information, they can be barred for 10 years. The Minister says they can apply next year and the year after, but in those circumstances they will not be able to apply for 10 years. Even though the decision may be based on inaccurate information, and the person who has been refused a family visitor visa has been told the information they gave was wrong and misleading, there is no opportunity to appeal that and they cannot make another application for 10 years. That seems to be a gap in the noble Lord’s reasoning.

I wonder whether he is dealing with this problem from the wrong end. If we deal with improving the quality of decision-making, in some cases by making it easier, and so more straightforward, for applicants to know what is required of them, we would see this logjam that he talks about removed. To try to deal with the logjam by merely removing the right to appeal does not seem to me to be the right way round.

I was surprised that he drew any comfort from the chief inspector’s report. I think that it is quite damning. Basically, he says, “I make these recommendations, people accept them, but it does not get any better”. Before the Government take an action such as this, they should seek significant changes and improvements in decision-making. I do not lay it all at the door of poor decision-making. However, he tells me that every decision is reviewed by a senior manager, so clearly something is wrong when so many appeals succeed despite that. Something in the process is going badly wrong.

I will not press my amendment today. I am grateful to the Minister for pointing out the deficiencies in my drafting but, despite his very brave attempts, I am not really reassured.

[Lord Henley]

My Lords, before my noble kinsman decides what to do with his amendment—obviously, it is his decision—I want to pick up one point. The noble Baroness says that an awful lot of appeals are the result of wrong decisions. I accept that some are the result of wrong decisions, but as she would accept, an awful lot are the result of the wrong information coming forward, and that is something far better dealt with by means of a new application. Obviously, we might have to look at how to ensure that people get the right information into their original application so that the correct decision can be made. That is a matter of making sure that we have the right procedures in place and I will certainly be prepared to look at that. However, I do not think that she should imply that all the problems are down to bad decision-making; an awful lot are the result of new information coming forward. That is why there are so many appeals.

[Baroness Smith of Basildon]

If the noble Lord reads Hansard and looks at my previous comments and at what I have just said, he will find that I acknowledge that sometimes a wrong decision is made because the right information is not supplied. Indeed, I quoted the chief inspector as saying that in 16% of the cases reviewed, applications had been refused on the basis of a failure to provide information, but the applicant was not aware of what information was required. I acknowledge that important point. If the Minister were to take that back to the UK Borders Agency and act on it, that would be an extremely positive step, so that all applicants are made fully aware at the time of application what information is required.

[Lord Hussain]

My Lords, may I raise one question? I live in a community where a lot of migration takes place and I can quote examples. However, I need some clarification from the Minister. On more than one occasion, applications from family visitors, who have visited Britain more than once, have been refused even though they have complied with the law and have done nothing against the law. They say, “Yes, we accept that the applicant has been to Britain in the past and that they have not broken any law, but things have changed and, on the balance of probabilities, we believe that they will not go back”. I wonder what sort of new information they will supply if they resubmit their application. The only answer I can see is a right of appeal, so that they can prove that they can fulfil all the requirements and guarantees needed to show that they will go back, as they have done in the past.

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Earlier that same year, the European Court of Human Rights had held that Belgium had violated an asylum seeker’s Article 3 rights, on the prohibition of torture, by returning him to Greece under European third-country return arrangements, by reason of the appalling conditions to which he had been exposed there. These judgments of the European Court of Justice and the European Court of Human Rights separately show that the presumption addressed by this amendment is both unlawful and inappropriate. The Government should take the opportunity presented by this Bill to remove it. I beg to move.

[Baroness Smith of Basildon]

My Lords, I, too, was sent a brief with the same information by the Immigration Law Practitioners’ Association, which briefed the noble Lord, Lord Avebury, on his amendments. There is a case here that is of interest. There is not much that I can add to what the noble Lord has said but I am interested to hear the Minister’s response, particularly to Amendment 148C. I am concerned about the arrangements for young people and children, particularly those aged under 16. My only comment is that I am willing to listen to the noble Lord’s response to those amendments.

[Lord Henley]

My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.

The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.

Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.

My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.

Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.

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[Lord Avebury]

My Lords, under Sections 96 to 99 of the Nationality, Immigration and Asylum Act 2002, the Secretary of State may issue a certificate causing a properly initiated and extant appeal before the First-tier Tribunal, Immigration and Asylum Chamber, or onward appeal against a decision of that chamber, to be summarily terminated. The cases dealt with in Sections 97 and 98 concern matters of national security or certain cases where the Secretary of State has certified that a person’s presence in the UK is, or would not be, conducive to the public good, and these amendments do not affect those provisions.

Section 96(1) and (2) concern situations where the Secretary of State asserts that the subject matter a person now relies upon could and should have been raised in previous appeal proceedings. However, the Secretary of State’s opportunity to make such an assertion and issue a certificate to exclude a right of appeal to the First-tier Tribunal is when she is making her decision in relation to the subject matter, not after she has rejected it and an appeal initiated. Indeed, Section 96 expressly recognises this. Section 96(7) states:

“A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued”.

Section 99 was commenced on 1 April 2003 by the Nationality, Immigration and Asylum Act (Commencement No. 4) Order. Section 96, however, was later revised and Section 96(7) inserted on 1 October 2004 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 1) Order 2004. However, when this revision was made, Section 99 was not amended so as to reflect the change introduced under the 2004 Act. The ineffective and erroneous part of Section 99, which the amendment seeks to remove, is another example highlighting the degree of complexity in the statutory immigration appeals provisions. I beg to move.

[Baroness Smith of Basildon]

My Lords, I can be very brief on this, as the noble Lord, Lord Avebury, explained his amendment in great detail. My understanding from the briefing that I received is that this proposal would be a modest tidying and simplification of what the Immigration Law Practitioners’ Association said was a highly complex statutory appeals process. On that basis, it appears to be a tidying-up amendment, but it would be helpful to know whether the Minister shares that view or whether he believes that it represents a significant change. My legal knowledge is not great enough, but I would like to hear the other side of it, and if it is just a simplification and tidying-up I hope that the Government would agree to it.

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Finally, Amendment 149A provides for legal aid, advice and representation, including at any appeal, for a person who is outside the country when their leave to remain is curtailed by proposed new Section 97B. We are not suggesting that the fundamental injustice of Clause 25 can be dealt with by the provision of legal aid in these cases, but we seek to highlight by this amendment the double iniquity of the clause when combined with the effects of the Legal Aid, Sentencing and Punishment of Offenders Act as it applies to immigration. Obviously, a person stranded overseas where there are no sources of advice on UK immigration law and who has little or no knowledge of the local language requires a great deal more help than someone living in the UK. It was said repeatedly during the passage of the LASPO Bill that legal aid should be reserved for the most serious of cases, and one could hardly imagine more desperate circumstances than the ones to which this amendment applies. These exiles must be granted legal aid, subject of course to the usual means and merits test. I beg to move.

[Baroness Smith of Basildon]

My Lords, I have a copy of the briefing that was sent to the noble Lord, Lord Avebury, and I have had the opportunity to read through what is quite a lengthy and complex explanation as he has been speaking, which has been helpful. Therefore, I do not want to repeat the arguments that he has made.

I do have some questions, although I do not know whether the noble Lord will be able to respond. I suspect that the noble Lord, Lord Avebury, will withdraw his amendment, possibly bringing it back on Report depending on the Minister’s answer. However, I have a few questions, as I am uncertain about some of the provisions in the clause and in the amendment, and it would be helpful if the noble Lord could address them. I am quite happy to have the response in writing.

From the briefing—I am sure I am not the only Member of the Committee to have received the same briefing on the amendments of the noble Lord, Lord Avebury—there is an implication regarding the circumstances under which somebody’s leave to remain will be cancelled while they are out of the country. I should be interested to hear from the Minister the criteria for cancelling somebody’s leave to remain while they are out of the country. Is this purely an administrative decision or, as is implied, is it almost the case that the Home Secretary is lying in wait, wanting to cancel leave to remain and waiting until a person leaves the country before doing so? It would be helpful to have some information on that. What proportion of cancelled leave to remain is taken when somebody is out of the country, as opposed to somebody being in-country?

Finally—we have had a very full explanation of the amendments—the legislation refers to the decision on removing the right to remain as being,

“taken wholly or partly on the ground that it is no longer conducive to the public good”,

for the person to have that leave. Is there a definition of “public good”? Is there a definition of when there is no longer that public good and the leave to remain is withdrawn? My concerns are about people being treated fairly and that there is no presumption that, because somebody leaves the country—well, I will come back to that. However, there must not be many of these cases. It would be interesting to know what proportion of cancelled leave to remain relates to people out of the country as opposed to people who are in-country.

[Lord Judd]

My Lords, the noble Lord, Lord Avebury, is absolutely right to put down the amendment. I am glad he drew attention to the comments by UNHCR, because UNHCR has immense responsibilities on behalf of the international community and its very serious considerations are sometimes treated too lightly.

Wrapped up in this issue is something on which I dwelt at Second Reading: concern about the division between what I would call administrative law and a real search for justice. In the fraught area of migration in general and the more difficult areas of asylum and the rest in particular, where all kinds of pressures and real dangers operate for the people concerned, it is most important to be certain that the balance remains on the side of justice. I would be grateful for the Minister’s considered view on whether this priority for justice—as distinct from a self-evident rationalisation of what may be convenient within political circles—can be pursued. The individual concerned is much more vulnerable when they are abroad. As the noble Lord has said, it is much more complex, challenging and difficult to mount an appeal from abroad. Can we really ensure that justice prevails if we have this provision? Should someone who has a right to appeal not have the right to pursue it here, where they can put their case fully before the courts and be tested in depth by them on their position and where there is an opportunity for others who may have a perspective on a case to bring their views and judgments into the deliberations that are taking place?

I hope the Minister will forgive me for saying that I am profoundly worried about this and would like his assurance that he is equally worried and is looking to make sure that, in this area, it is justice and not administrative convenience—whatever the apparent logical reasons for this administrative convenience—that has pride of place.

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[Lord Avebury]

My Lords, in moving Amendment 149B, I shall also discuss Amendment 149C. These are alternative amendments reducing the impact of the additional and highly restrictive requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal. This additional requirement is referred to as the “second-tier appeals test”. The second of the two alternatives I have tabled is narrower, removing this test in asylum and human rights appeals but not other immigration appeals.

The second-tier appeals test was introduced by Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 for certain appeals from the Upper Tribunal to the Court of Appeal. During the passage of the Borders, Citizenship and Immigration Bill in 2009, your Lordships voted through amendments to prevent the test applying to immigration and nationality appeals. This amendment derives from the wording of the amendment originally tabled by my noble friend Lord Lester of Herne Hill, QC, the noble Lord, Lord Pannick, QC, and the noble and learned Lord, Lord Lloyd of Berwick, and subsequently adopted by my noble friend Lord Thomas of Gresford and the late Lord Kingsland as part of a wider amendment concerning the Upper Tribunal. The Joint Committee on Human Rights had concurred with the legal opinion of Sir Richard Buxton, a recently retired Lord Justice of Appeal in the Court of Appeal, that the introduction of such restrictions might not be compatible with the UK’s international obligations.

The same considerations apply now as they did then, and there is a new factor. The increased rotation of judges under the Crime and Courts Bill will mean that there are more judges in the Upper Tribunal who are not immersed in these cases making asylum and immigration decisions, and they will be without the supervision of the Court of Appeal if the clause is unamended. At the moment, we continue to see the higher courts engaged on these issues. There are some poor tribunal decisions but, to be fair, this is an incredibly complex, difficult and fast-moving area of the law. The tribunal judges sitting from time to time in the immigration and asylum chambers of the tribunal may be excellent tribunal judges. However, they are not infallible, and the effect of the LASPO Act 2012, whether directly, in immigration, or indirectly, in asylum, will be that more appellants are unrepresented.

Among the concerns expressed in 2009 was the impact of the second-tier appeals test in potentially excluding appeals to the Court of Appeal where the individuals faced removal in breach of the refugee convention and their human rights as a result of errors of law by the tribunal. Ministers gave assurances in both Houses that these sorts of cases would be the ones that could be expected to meet the test. Phil Woolas said,

“the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal”.—[Official Report, Commons, 14/7/09; col. 210.]

There were other soothing comments, of which I will cite only one, made by the current Immigration Minister, Damian Green, who said:

“The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office”.—[Official Report, Commons, 14/07/09; col. 212.]

Those assurances have proved to be ephemeral following the judgment of the Court of Appeal in the case of PR (Sri Lanka). The Court of Appeal considered the ministerial assurances given in 2009, concluding that,

“it would be wrong in principle”,

to be constrained by those assurances and, in applying the second-tier appeals test, refused permission to appeal in each of the three asylum cases before the court. In one of those cases the appellant had been detained and tortured in Sri Lanka. Applying the test, the Court of Appeal concluded:

“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as to require the attention of the Court of Appeal”.

In another of the three cases, the judge identified an error of law in the failure of the tribunals below to correctly apply country guidance in respect of Zimbabwe asylum claims, but concluded that the test none the less precluded any appeal to the court. In the last of the three cases, Lord Justice Pitchford found the reasoning of the tribunals below to be, “obscure and contradictory” and such as to give rise to a real prospect of success on the appeal if permission had been granted.

In the case of JD (Congo), however, the Court of Appeal granted JD permission to appeal on the basis that there was an error of law in the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law, but the UT’s criticisms of the FTT’s decision amount to no more than a disagreement as to the proportionality of removal. The consequences of removal for JD and his partner were acknowledged to be very severe.

Taken together, these two judgments show that asylum and other human rights cases are neither exempt from the test, nor grounds in themselves to meet the test. That an error could lead to a person being returned to a country where he or she may be tortured will not necessarily mean that the test is met, as in the case of PR (Sri Lanka).

There are other significant conclusions to be drawn from these cases, as the Immigration Law Practitioners’ Association emphasised in its briefing for your Lordships on these amendments. I hope that my noble kinsman has had an opportunity of considering them carefully in making up his mind as to how to respond this afternoon.

In conclusion, leaving aside all the complexities of the second-tier appeals test, which have preoccupied the Court of Appeal, it has been shown that without Amendment 149B, or at least Amendment 149C, we shall be in breach of our obligations under both the refugee convention and the ECHR and that we have been warned by no less an authority than the UNHCR itself. I beg to move.

[Baroness Smith of Basildon]

My Lords, we are again grateful to the noble Lord, Lord Avebury, for the detail with which he explained his amendment. I think that these are amendments drafted by the Immigration Law Practitioners’ Association. As I understand the noble Lord, they are alternative amendments. The first removes the requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal: that is known as the second-tier appeals test. The second, if I understand it correctly, is a lesser amendment and would apply to all immigration and nationality appeals concerning asylum and human rights. The noble Lord indicates that I do understand correctly.

The noble Lord referred to the impact the second-tier appeals test has had and I would like to hear the response of the noble Baroness, Lady Northover. There were some serious points raised by the noble Lord, Lord Avebury. If the Government are opposing the amendment, we need to understand their case for doing so, including their views on the impact this would have if implemented and the reasons and evidence used to justify holding those views. It would be helpful to hear from the noble Baroness. The noble Lord, Lord Avebury, has made a detailed and interesting case and there must be some justification if the Government are not going to accept the amendments.

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Moved by

[Baroness Smith of Basildon]

149CA: Clause 26, page 23, line 29, at end insert “who is working in Criminal and Financial Investigation”

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[Baroness Smith of Basildon]

My Lords, in the clause that my amendment seeks to address the Government are proposing to extend vastly the powers of the UK Border Agency’s customs and immigration officers. I do not necessarily oppose this in principle. We have to understand the very challenging nature of the work undertaken by border control. The nature of international and global threats is constantly changing and we have to pay tribute to the immigration officers. They have a difficult job, they work in a challenging environment, and they have suffered cuts to their numbers in the last couple of years. However, we need to look at two things.

First, such an extension of powers would need to be properly justified and explained to your Lordships’ House. Secondly, we need to ensure that those exercising those powers have the necessary skills, rank, and remit, in order to ensure public confidence in the UK Border Agency as well as confidence within it. Also, is it up to it? I do not in any way mean the individual border officers, but rather whether they have the resources, training and capacity to undertake those roles.

Clause 26 extends a number of powers to immigration officers, both under the Regulation of Investigatory Powers Act and the Proceeds of Crime Act. Those powers are significant: the power to authorise the use of covert surveillance—“intrusive surveillance”, according to the Bill—and property interference such as wiretapping and installation of listening devices, as well as powers to authorise confiscation and detained cash and money-laundering investigations. These are serious new powers to give to immigration officers. They are currently only authorised by senior officers, and they are exercised by experienced and specialised professionals. Our amendments seek to ensure that if those powers are to be extended to immigration officers, they will be exercised with the same level of expertise and seniority.

When I first looked at the Bill it seemed to contain very wide-ranging powers, and there is a case for the Government to justify those. However, I looked at the Explanatory Notes, and the amendments seek to put on the face of the Bill what is in them. The Explanatory Notes are very helpful in this regard, because they make clear—I refer to page 64 and paragraph 380 in particular—that the intrusive surveillance available under RIPA should only be extended to officers working within the criminal and financial investigation teams. The paragraph says:

“The purpose of this amendment”—

which we are talking about, and which is in the clause—

“is to provide for immigration officers working in Criminal and Financial Investigation (‘CFI’) teams in the UK Border Agency … to be able to apply to exercise property interference powers equivalent to those already used by customs officials”.

It cites the Act and legislation under which they can use them, and states that:

“CFI teams have responsibility for investigating smuggling of drugs, firearms and weapons and organised immigration and customs crimes”.

If, as I understand from the Explanatory Notes, the Government intend these powers to be used only in the specific context of criminal and financial investigation by immigration officers, then it would be helpful to state that in the Bill and be very clear about it, rather than allowing the scope—as seems to be the case at the moment in this clause—for any immigration officer to exercise those powers. I am concerned about whether training and support could be available to all immigration officers, and whether it would be for all staff or only for those above a certain rank. That gives me some cause for concern, because if all immigration officers had that power, there is then the understanding that any immigration officer could exercise that power, even without the training or the appropriate rank or experience. What is in the Explanatory Notes is therefore better than what is in the Bill, though that may be an oversight in drafting.

Amendments 149CB and 153B, which follow Amendment 149CA, are intended to probe the Government’s justification for these highly specialised powers. These probing amendments remove Clause 26(4) and (5) and paragraphs 14 to 39 of Schedule 14, which extend to the UK Border Agency’s chief operating officer the ability to authorise immigration officers’ powers of investigation into confiscation, detained cash and money-laundering under the Proceeds of Crime Act. At present, the only individuals who can exercise those powers are accredited financial investigators, police constables or Customs officials, and in the case of confiscation investigations only SOCA officers—although SOCA has now been absorbed into the National Crime Agency. Notwithstanding police constables, all these individuals work within the specific field of serious financial and economic crime. I assume that once the National Crime Agency is up and running and fully established, it will have responsibility for those crimes.

The Government need to explain and justify for what purposes immigration officers also need such powers. What will be the relationship between the immigration officers who have this power and the National Crime Agency? Earlier clauses in the Bill refer to the relationship between the National Crime Agency and local police forces, and the powers of notification. If immigration officers are given new powers, there should be the same kind of co-operation and information-sharing between immigration officers, who have such powers, and the National Crime Agency, otherwise there will be a gap to fall through; both groups could end up investigating similar crimes or there could be an overlap of crimes. It would be helpful if the Government could clearly explain for what purposes immigration officers need these powers, and why, with the existing powers they have, there could not be co-operation with the National Crime Agency.

Paragraph 381 in the Explanatory Notes says that:

“At present, the UKBA is able to authorise applications from immigration officers investigating serious organised immigration for directed surveillance and Covert Human Intelligence Sources … and the ‘senior authorising officer’ can authorise applications for intrusive surveillance”.

However, this amendment takes it one stage further, so there needs to be a little more justification and understanding. I can understand the issue around the crimes, but I am not clear why any immigration officer could have those powers—which appears to be the case in the Bill, though perhaps not in the Explanatory Notes. Why is it not sufficient to extend the powers of current specialised officers, or to work with them and the National Crime Agency? I would also be interested in some information on the training that would be given to the specialised officers. Would there originally have been any expectation that they should have any specialised skills, or would it have been something that any immigration officer could take on if they had had the appropriate training?

Finally, does the UK Border Agency have the capacity to take on this role? The following amendment, in the name of the noble Lord, Lord Berkeley, which we will discuss shortly, covers a number of issues including queues at Heathrow, where we have seen enormous pressures put on the staff. Given the current wording of the Bill, and in particular that it would seem to apply to any immigration officer, I worry about giving very wide-ranging additional powers and responsibilities to a border agency that, as we heard earlier, is struggling to maintain its current responsibilities. It has had to draft in officers from the Ministry of Defence and civil servants from other parts of the Government. I want an assurance that anybody drafted in on a temporary basis—to help out with extended queues at Heathrow, for example—would not be given the powers of entry and surveillance as outlined in the Bill.

It would be helpful if the Minister could give some answers to those questions. The new powers given to the UK Border Agency are very extensive, and it would be interesting to know the Minister’s justification of them, and how he imagines that they will operate.

[Lord Henley]

My Lords, I am grateful to the noble Baroness for setting out what she is trying to do in these amendments, which I take it are merely probing amendments, as I believe she said. I am also grateful that she paid tribute to the very difficult job that immigration officers do. However, she probably used rather unfortunate language when she asked whether they were quite up to it, although she qualified what she meant by that. She then said that she thought that the Explanatory Notes were possibly better than the Bill itself. Sadly, we do not have legislation by Explanatory Note. However, I am always more than happy to look again at the wording of individual clauses, should it be necessary. Again, as always, we have any amount of time to deal with these matters between now and Report and the further stages as this Bill proceeds through Parliament.

Put very simply, the noble Baroness is asking what Clause 26 is about and why we think it is necessary. The proposed extension of powers is saying that it is necessary for the United Kingdom Border Agency to have extra powers to respond robustly to serious and organised crime. Customs officials within the UK Border Agency are already entitled to apply for intrusive surveillance under RIPA and for property interference under the Police Act for the purpose of investigating customs offences. This clause will rightly extend these powers to immigration officers for the purpose of investigating serious and organised crime.

I turn to the amendments and, in doing so, I hope that I will answer some of the points. I suspect that the noble Baroness has not quite got the wording of the amendments right because Amendment 149CA achieves the opposite effect to the one she wants. It would require the authorising officer, who is responsible for authorising applications to interfere with property under Section 93 of the Police Act 1997, to be a senior official who is working within a criminal and financial investigation team of the UK Border Agency. Although I suspect it may not have been the intention of the noble Baroness, the effect of this amendment would be to restrict and potentially lower the grade of the authorising officer.

Clause 26(1) already limits the role of the authorising officer to a senior official within the meaning of RIPA who has been designated for that purpose by the Secretary of State—that is, the Home Secretary. Within the police, the relevant rank for an authorising officer would be a chief constable. Under the UK Border Agency’s structure, this would be the current director of operations and deputy chief executive. No one working in the criminal and financial investigation teams would be senior enough to equate to that grade. I am sure that the Committee and the noble Baroness share our view that an authorisation to interfere with property should not be approved by anyone less senior than that level. I should also note that the director of operations and deputy chief executive of the UK Border Agency already effectively authorises applications under Section 93 of the Police Act 1997 with regard to customs investigations.

I appreciate that this is a probing amendment but, in short, it would weaken rather than tighten the controls on the exercise of these intrusive powers under Part 3 of the Police Act 1997. All that said, the noble Baroness made it clear that she is seeking to give effect to our commitment that we will limit the exercise of these intrusive powers—that is why she wanted to know why we are seeking extra powers—to specially trained immigration officers in the UK Border Agency’s criminal and financial investigation teams. We do not, however, consider it appropriate to include such an express provision in the Bill given the existing safeguards in the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. We do not have such specificity for customs officials, and the aim is to provide parity for immigration officers.

As the noble Baroness will be aware, Section 28 of RIPA provides that for a senior authorising officer to grant an authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is proportionate and necessary for preventing or detecting serious crime or in the interests of national security or in the interests of the economic well-being of the United Kingdom. The Police Act 1997 also imposes similarly strict controls over the authorisation of property interference.

I appreciate that Amendments 149CB and 153B are probing amendments. They would remove the powers sought for immigration officers in relation to the Proceeds of Crime Act 2002. These powers have been sought for good reason in an attempt to improve the effectiveness of the UK Border Agency’s investigatory capability. Providing access to the relevant Proceeds of Crime Act powers will ensure that the UK Border Agency’s immigration officers are able to play their part in dealing with the proceeds of organised immigration crime.

Moreover, these provisions will place immigration officers on the same footing as their police and customs counterparts and reduce their reliance on outside bodies such as the police. At present, only the UK Border Agency’s customs officials are able to use the full range of Proceeds of Crime Act powers and even then only in relation to customs offences. Immigration officers presently have to rely on the very few accredited financial investigators within the UK Border Agency or on seconded police officers to conduct those investigations. This is clearly a weakness in the UK Border Agency’s ability to fight organised immigration crime. The Bill ultimately ensures that the UK Border Agency can take action to deal with the proceeds of all the criminal offences in its remit, whether commodity smuggling or serious immigration and nationality crime.

The noble Baroness sought an assurance that, where civil servants and others are drafted in to help, we will be able to maintain the border appropriately and that they will have the extant powers. I can give an assurance that any civil servants brought in to help check passports will not be given the powers being sought. They would obviously not have the training that the noble Baroness and we think is appropriate to do so. In any case, those who are brought in to assist with the management of queues are being brought in specifically for that purpose and not to investigate criminal activity.

I do not know what the usual channels and others are thinking about the timing of these matters or whether the noble Baroness will have to keep going for another three minutes, but I hope that, with those assurances, she will feel able to withdraw her amendment. It may be necessary for me to write to her with further detail. I have explained why I think Amendment 149CA is defective. I leave it to the noble Baroness to consider what to do with her amendments.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. I am puzzled about my amendment being defective. I know the noble Lord has enjoyed explaining that to me on a number of amendments. I always say they are about the intention behind the amendment and that we will come back on Report with one that satisfies him.

I understand that the Explanatory Notes are not part of legislation, as the Minister pointed out to me the other week—I am rather long in the tooth in regard to some of these things—and I am sure that they are not intended to be misleading. They state:

“The purpose of this amendment is to provide for immigration officers working in Criminal and Financial Investigation … teams in the UK Border Agency … to be able to apply to exercise”—

and then they go on to say what those powers are.

I will have to read very carefully what the Minister said in Hansard to make sure I fully understand what he is saying about it not being exclusively those officers—even though the Explanatory Notes say it would be—but that it would be other officers of a certain grade and level.

I said at the very beginning that we are not opposed to the extension of powers in principle, but we just need to understand the Government’s justification and to have some explanations and clarifications. I will read the Minister’s comments in Hansard to clarify the position for myself, but I wonder whether he is talking about slightly different things. At some point, he may have been talking about the authorisation of the action, while I am talking about the officers undertaking the surveillance as well. I hope we have not misunderstood each other. I want an assurance that the officers undertaking very intrusive forms of surveillance—perhaps phone tapping, as it says in here—will not just be authorised by a senior officer, but will have the appropriate skills, experience and training and that safeguards for the public are built in. This is a probing amendment but it may not remain one. We want to look at this a bit further and in more detail, but I am grateful to the Minister for taking time to explain some of the measures. I will look at what he has said in Hansard and I may come back to him on the point about who will have the powers and what training will be provided and I shall also look for an assurance that it will not undermine the skills of existing police officers.

One area on which the Minister did not respond was the relationship between such officers and the National Crime Agency. Given the debates that we have had earlier during the passage of the Bill, it would be helpful to explore the relationship that border officers, who deal with organised and serious crime issues as regards immigration and border control, have with the National Crime Agency, which is a national police force for organised and serious crime. We need to explore that further. I would be happy for the Minister to write to me on that point. I am happy to withdraw my amendment.

Amendment 149CA withdrawn.