Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Duncan of Springbank Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

Finally, just before I stood up, I noticed a message from my right honourable friend James Brokenshire. I note the comment from the noble Lord, Lord Russell of Liverpool, and I shall certainly send his regards. I want to thank him for the way in which he has worked with me and other noble Lords to ensure that this Bill has left this place in a very good state.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I have received a single request to speak after the Minister. I call the noble Lord, Lord Adonis.

[Lord Adonis (Lab)]

My Lords, I am very grateful to the noble Baroness for the lengthy reply she has given. However, unless I misheard her, she did not in fact give a direct reply to my very fundamental question on Amendment 2. It was: would the authorisation by agents of the state of murder, rape and torture be against the Human Rights Act and the European Convention on Human Rights? If I understood her correctly, she said that nothing could be authorised that was against the Human Rights Act. Well, is it against the Human Rights Act or not? That is a straight question, but I noticed that she did not mention the European Convention on Human Rights at all in her reply. Can she say whether the authorisation of murder, rape and torture would be against that convention?

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[Baroness Williams of Trafford (Con)]

I beg to move.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I understand from the clerks that the noble Baroness, Lady Chakrabarti, has already indicated that she wishes to press her amendment.

Motion B1 (as an amendment to Motion B)

[Baroness Chakrabarti]

Moved by

Leave out “not”.

Domestic Abuse Bill

Lord Duncan of Springbank Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 1st February 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

The next speaker is the noble Lord, Lord Rooker. We do not seem to have the noble Lord, Lord Rooker, with us. I call the noble Baroness, Lady Burt of Solihull.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Duncan of Springbank Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

Lastly, Amendment 14 talks about a judicial commissioner. I am none too sure, as we discussed the last time we debated this Bill, whether the judiciary is ideally placed for some of these decisions. At this point, I am going with the Minister. I will listen carefully, but let none of us forget that whatever actions are taken are often taken in the interests of society, given the danger from terrorism and all that area of life.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

The noble Lord, Lord Mann, has scratched from the debate, so the next speaker is the noble Baroness, Lady Bull.

[Baroness Bull (CB)]

I rise principally in support of Amendments 12 and 13. My strong preference would be for these straightforward amendments, which would prevent all use of children and vulnerable adults in the way the Bill proposes to allow. If the noble Lord, Lord Young of Cookham, presses this, I shall vote with him. If the House cannot align behind this absolute position, I shall support Amendment 24, so effectively argued by the noble Baroness, Lady Kidron.

I have heard nothing in previous stages of the Bill to convince me to drop my fundamental opposition to the use of children as covert intelligence sources, and certainly nothing to persuade me that this further expansion of their use in authorised criminal activities should be allowed. Encouraging children into criminality to serve the ends of the law stands in direct opposition to what should always be our priority, which is to extract children and other vulnerable people from situations and relationships that promote criminality. It also contravenes existing child protection laws, including the UN Convention on the Rights of the Child. As the noble Lord, Lord Young, said in his as ever excellent speech, they make it clear that a child’s best interests must be a primary consideration in all decisions regarding that child. As the helpful joint briefing that many of us received from Just for Kids Law, Justice and the Children’s Rights Alliance for England points out, if a parent were knowingly to place a child in a dangerous, criminal situation, the law would rightly take action to remove that child to a place of safety. Yet that is exactly what the Bill authorises the law to do.

We also know, as the noble Baroness, Lady Kidron, so forcefully reminded us, that the children most likely to be recruited as covert sources are already among the most vulnerable, at risk of being targeted by criminal gangs and more likely to come from disadvantaged backgrounds, to live in deprived areas, to have fewer opportunities and to have suffered from trauma, substance misuse, mental health issues and learning disabilities. These children need the law to protect them, not to exploit them.

Nor have I heard anything to persuade me that the value of children’s covert activities would be such that it overrides these moral concerns. In fact, there is good evidence to the contrary—that teenagers are not particularly effective covert sources, because of the status of their neurological development. As the brain develops into adulthood, the connections between the rational and emotional parts of the brain grow stronger and more effective. But in teenagers, this process is still under way, and adolescents process information with the part that deals with emotion. That is why teenagers are more likely to act not on the basis of reason but on instinct; it is why they are more likely to engage in risky behaviour and less likely to consider the consequences of their actions.

Added to this, most young people involved in gangs and drug supply are themselves regular users, often because they need to fit in with a prevailing drug culture. Drug use also impacts on brain development, delaying further the development in the connections between the logical and emotional parts of their brains. So alongside the moral question of whether it can ever be right to encourage children into situations of criminality, we have to set an equally serious consideration about the accuracy, consistency and completeness of any information they are likely to provide. In this case, as in so many, the end result does not justify the means.

Amendment 13 would prohibit granting of criminal conduct authorisation to vulnerable individuals, victims of modern slavery or trafficking. I have raised at previous stages the concern of Anti-Slavery International: people who have been trafficked or enslaved are unlikely to be able to give informed consent, because of the experiences of manipulation and control they have endured and the long-term psychological implications of this on their ability to take independent decisions. This amendment would give vulnerable and already traumatised people the protection that they deserve. Alongside this, however, I would welcome a commitment from the Minister to address the omission from the code of practice of any reference to mental capacity and the specific issues to be taken into account when dealing with individuals with impaired decision-making capacity.

The Government’s own Amendment 26 seeks to introduce safeguards to the granting of criminal conduct authorisations to children used as CHIS. However, as we have heard—I shall not repeat the reasons—this amendment falls short of addressing the concerns expressed by this House. It largely reiterates existing safeguards and still fails to ensure that 16 to 17 year-olds and vulnerable adults have access to an appropriate adult at all meetings.

Amendment 24 would place protection for children, victims of modern slavery or trafficking and vulnerable adults on a statutory footing. These are some of the most vulnerable people in our society. Their protection needs to be enshrined in law and, if the noble Baroness, Lady Kidron, decides to divide the House, I will be voting with her.

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We discussed this issue in great detail in Committee, and my right honourable friend James Brokenshire and I have had a lot of conversations since then. Noble Lords have also had the opportunity of sensitive briefings from operational partners. In response to the points made by noble Lords, the Government have put forward significant amendments that, importantly, still ensure operational workability. I urge all noble Lords to support the amendments put forward by the Government. However, if a noble Lord wishes to test the opinion of the House on a further amendment, they should do so now.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I have received requests to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, due to a mistake I have made, I am not able to participate. My concern is the possible difficulty of preventing criminal communications with children.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

Short and sweet. The next speaker is the noble Lord, Lord Russell of Liverpool.

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Amendments 13 and 14 not moved.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We now come to the group consisting of Amendment 15. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press the amendment to a Division must make that clear in debate.

Amendment 15

Moved by

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Duncan of Springbank Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Mann (Non-Afl)]

My Lords, I join the welcome and congratulations to the Lord Advocate for Scotland and the noble Lords, Lord McLoughlin and Lord Walney. I thank the noble Lord, Lord McLoughlin, for the way in which he gave me and others support when we were under pressure at the height of the issues of anti-Semitism in the Labour Party. I acknowledge that what he said in private was far more significant than what he said in public. The noble Lord, Lord Walney, stood on the right side when he did not have to, and took a brave stance. He supported Jewish members of the Parliamentary Labour Party and Jewish Members of the Labour Party. That will not be forgotten, and I thank him.

There have been a number of changes since the 1970s and 1980s. We are no longer fighting countries and armies under rules of engagement in war. We have human rights legislation that we did not have before. Those are significant changes. Since 1997, the strongest trade union organisation in the country is at GCHQ. Being a trade unionist and being loyal to one’s country are not contradictions. The density of membership there is a sign of that. It is part of the checks and balances in the system that makes it work.

We are now in a digital era, which changes many things. In many of the issues that we are talking about today, we are missing the mundanity of the actions that will be required outside the law. Some of the models are rather old-fashioned in terms of approach to what is going on. The mundanity is important to the effectiveness of the powers required.

I particularly want to talk about what happens if we do not do this, as the noble and learned Lord, Lord Garnier, eloquently pointed out. We go back to the grey area that existed in the 1970s, 1980s and 1990s —the shadows, as it was described. What characterised that more than anything was the incompetence of the actions taking place. Nothing could illustrate that better than putting people inside the International Marxist Group or, as we used to call them, the sons and daughters of the bourgeoisie. The only revolutionary thing that that organisation ever did was when some of its members accepted a peerage to come into this place.

The incompetence of the grey area was not in the national interest. There is a worse example. The Economic League sums up the grey area, the shadows and the incompetence. I should know: I was on the Economic League blacklist. When I went to work for the Ciba-Geigy chemical company in Manchester, I got given a job that was then withdrawn because I was on the list. I managed to get hold of the list and found my name on it. That is what happens with a grey area.

The Bill does more than codify; it allows accountability. It does not mean that things will not go wrong and there will not be big issues—there could well be—but it gives us, the people and the victims, the power to do something about it. The grey area is not an option. I want to see the Bill go through.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

The noble Lord, Lord Green of Deddington, will not be speaking in the debate so we will move straight on to the noble Baroness, Lady Whitaker.

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[Baroness Whitaker (Lab) [V]]

Is that better? I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act but— [Inaudible.]

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I am afraid we still cannot hear the noble Baroness. I suggest that we come back to her because we are not able to pick up her words. If she has a chat with the people on the other end of the line, we will come back after the next speaker, hopefully when her microphone is functional. I am sorry, but I am going to move directly on to the noble Baroness, Lady Ritchie of Downpatrick. We will return to the noble Baroness, Lady Whitaker, next.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I offer my congratulations to the three noble Lords, including the Minister, on making their maiden speeches today.

I am afraid I cannot give the Bill approval because it provides people employed by the Government with immunity for carrying out murder and heinous crimes. In fact, it would give statutory effect to legalised criminal offences committed by informants, provided that MI5, the Police Service of Northern Ireland or other UK law enforcement bodies have authorised the informant to commit the crime in advance. I understand that this is known as criminal conduct authorisation.

There are also no express limits set out in the Bill to prohibit informants’ participation in particular crimes that would constitute human rights violations such as murder, torture including punishment beatings, punishment shootings and kidnapping, or acting as agents provocateurs. I think back to the use of agents in paramilitary murders in Northern Ireland. This goes to the very heart of the legacy issues that the Government are currently considering and their very unhelpful Statement of 18 March.

There is a concern that, in addition to criminal conduct authorisations making criminal acts by informants “lawful for all purposes”, the extraterritorial provisions of Section 27(3) of the Regulation of Investigatory Powers Act 2000 could also apply, namely that:

“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”


This would mean, for example, that MI5 could authorise from its Belfast base a serious criminal offence to be conducted by a paramilitary informant in the Republic of Ireland. That offence would be unlawful under UK law but, clearly, this would not change an act being a criminal offence—[Inaudible.] The noble Lord, Lord Dubs, referred to the murder of Mr Finucane in all these regards. I must ask the Minister some questions. Were the Irish Government consulted on the content of this legislation and on the fact that this proposed activity could take place in their jurisdiction? Were they asked if this would impact on their own police service—the Garda Síochána? Did the Prime Minister discuss this with An Taoiseach when he met him in Hillsborough earlier this year?

It is important that significant amendments are made to this Bill to ensure that the UK’s prosecuting authorities can independently review crimes—[Inaudible.] —and remove the power for MI5 and other public authorities to brand crime “lawful for all purposes”. I cannot accept the extraterritorial nature of this because it places an impact on the bipartisan rule of Britain and Ireland in terms of Northern Ireland.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I understand that we are still not able to return to the noble Baroness, Lady Whitaker; once her microphone is corrected, we will attempt to do so. We will move straight on to the noble Lord, Lord Sikka.

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[Baroness O’Loan (CB) [V]]

The Minister stated that this is needed for the MoD and, no doubt, for the security service. It raises problems for our relations with other states. We need processes to ensure the constant flow of information. To do that, we must amend the Bill.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We have ironed out the gremlins with the noble Baroness, Lady Whitaker, so we will return live to her.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very sorry, but I am afraid that the gremlins seem to have succeeded in this instance. We may have to leave it there.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I am sorry, Lady Whitaker. We will try and return to you if we can find a microphone that works. We will go straight on to the noble Lord, Lord Judd.

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[Baroness D’Souza (CB) [V]]

Most of what I wanted to say has been said, and eloquently said. I will merely emphasise two points before I metaphorically sit down. The Government justify the absence of limits on the potential criminal activity that the Bill enables by saying that to do so might serve to expose active agents. Furthermore, HMG argue that there is no need to include such limitations in the Bill, as has been the case in similar legislation in Canada and the USA, on the basis that the UK is party to the European Convention on Human Rights, which is incorporated in the Human Rights Act 1998, and is therefore bound by the terms of the convention. However, at the same time and in almost the same breath, the Government said, in legal filings, that they do not believe that covert agents should be bound by the terms of the Human Rights Act. Additionally, since the Human Rights Act specifically precludes murder, torture or other degrading behaviour, which surely covers sexual violence, the argument that naming limits might endanger agents rather falls to the ground. Will the Minister clear up these ambiguities?

Secondly, the Bill relies heavily on oversight by the Investigatory Powers Commissioner, the right to lodge any complaint with the tribunal and additional oversight —oh, I fear I have lost my text. Forgive me. What I was going to say is basically that dependence on the Investigatory Powers Commissioner, when there are no fewer than 14 authorising authorities bound to ensure that any criminal activity undertaken must be proportionate, necessary and at the lowest level possible to achieve the aims of the particular operation, is surely too much to ask. One could rely on the ISC, but we all know that too often the ISC has not received full or timely information to fulfil its function, and the tribunal itself will obviously take place after the criminal act has been committed. For that reason, I ask the Minister to clear up what seem to me to be ambiguities.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We are going to make a final attempt to return to the noble Baroness, Lady Whitaker. We hope that, on this occasion, the gremlins have finally been removed from the system.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 21st October 2020 Lords Chamber

The Windrush Lessons Learned Review made it clear that a huge part of the problem was the Home Office’s refusal to listen to outside voices. Those outside voices are speaking loud and clear. I hope that this time the Government will learn the lesson and open their ears. I beg to move.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

Five Members have indicated that they wish to speak at this point: the noble Lord, Lord Polak, the noble Baroness, Lady Ludford, the noble Lord, Lord Cormack, and the noble Baronesses, Lady Neville-Rolfe and Lady McIntosh of Pickering. I call the first of those speakers, the noble Lord, Lord Polak.

[Lord Polak (Con)]

My Lords, I have no intention of delaying the House as I have made my views on this pretty clear. The noble Lord, Lord Oates, has been very clear and precise. I believe that the Government are sticking their heels in for no good reason.

I should make it known that this morning there was a power outage at the police national computer centre in Hendon—run, of course, by the Home Office. As a result, police forces across the country were not able to access the police national computer. I do not need to explain to noble Lords that power outages of this sort have a serious effect on police operations. Following the technical issue that affected our voting on 30 September and this issue today, surely those EU citizens who request physical proof should be able to receive it like any other citizen.

The noble Lord, Lord Oates, tabled the amendment in lieu to deal with the cost element that the Minister brought up on Report. I agree with him, because non-EEA citizens now receive physical proof, so I really fail to understand what the up-front costs that the Minister referred to are. It is an existing scheme. EU citizens deserve to be treated equally and the amendment deserves to be accepted. This is a matter not of policy, but of process. Non-EU citizens can obtain physical proof of settled status, so EU citizens will be the only group without that physical proof. I fail to understand why the Government are unable to accept the compromise amendment that now deals with the financial question.

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[Baroness McIntosh of Pickering (Con)]

My Lords, I am tempted to support this amendment, moved by the noble Lord, Lord Oates, as we both approach the anniversary of our entry into this House, five years ago. I urge my noble friend the Minister to keep an open mind on this amendment and to agree to it.

As I reminded my noble friend, in 2014-15, the Government—at that time, it was the Defra department —tried to introduce a digital-only farm payments scheme. It was scrapped because it simply could not be delivered and the department reverted to paper-only applications. I remind the House that many of the applicants will live in rural areas—they will not all live in inner-city areas and major towns—where broadband is woeful. Many existing not-spots do not have the capability to carry this scheme. The Government acknowledged this recently and are backing down from their commitment to universal coverage by 2025, so they recognise the limitations of their digital by default-only policy.

I remind the House that on 16 October, the National Audit Office reported that broadband users in rural areas are being left behind in major network upgrades. The Home Office should recognise that there is not universal coverage of the broadband and internet technology that will be required to deliver the digital service by default. While I have the greatest regard for both my noble friends Lady Neville-Rolfe and the Minister, we have to accept that some 5% of people are living in the hardest-to-reach areas. In my view, this digital-by-default policy is being driven by an unelected adviser whose respect for the rules and the law is less than exemplary, and I think that he should join the real world with regard to some of the policies being brought forward.

The other difficulty I have with this policy is a very real one. I remind the House that my mother became a naturalised Brit, having come over to Britain from Denmark via Germany in 1948. What grieves me most about the policy that we will end up with without the amendment in the name of the noble Lord, Lord Oates, is that most of the applicants do not have English as their first language; it is not their mother tongue. In the words of my noble friend Lord Cormack, why are we seeking to discriminate against people in this way? I therefore urge my noble friend to show the big heart and affection that she has for these people and make sure either that we adopt the amendment in the name of the noble Lord, Lord Oates, in lieu of his earlier amendment for the reasons he has given, or that the Government should come forward with an amendment of their own. Digital by default in these circumstances is not going to work.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I know that almost everyone in the Chamber has spoken to the Motion, but I have to ask whether anyone else wishes to contribute at this point. Silence being the case, I shall move on to the next speaker, the noble Baroness, Lady Meacher.

[Baroness Meacher (CB) [V]]

My Lords, I shall speak in support of the amendment tabled by the noble Lord, Lord Oates. He has removed the only apparent government objection to his original amendment —that no fee could be charged—and, in her opening remarks, the Minister produced a few rather more minor costs. However, he undermined that argument, so perhaps she can clarify that point in her summing up.

As I understand it, this amendment will do no more than bring EEA nationals into line with all other immigrants residing in the UK. The Government have argued in relation to many amendments to this Bill that they are determined to treat EEA nationals in exactly the same way as other people who are resident in this country. Surely the Minister cannot then argue in relation to this amendment that EEA nationals should be treated differently when compared with immigrants from other countries. If she does not accept this amendment, can she explain this apparent inconsistency of approach?

The noble Lord, Lord Oates, has cogently set out the case for this amendment and his arguments need no repetition. For me, the two most powerful are first, that, as others have mentioned, IT system failures and technical faults are all too frequent, while the second is that large numbers of people have limited IT skills. The Minister responded to that point by saying, “That will not be a problem because there will be department-to-department communication.” Let us suppose that someone goes to a doctor needing medical help, but the Home Office system has gone down or some other technical problem has arisen; the doctor cannot treat them. I do not think that it is good enough to say, “Oh, do not worry, it will all be fine on the night.”

Just imagine, as an example, that we no longer had physical passports, merely an entry online to prove our UK citizenship. We could arrive at an airport and not be entirely confident that our details would be found to enable us to board an aircraft. How many of us would be comfortable with that? I certainly would not be. I wonder, when the Government talk about these things, whether they are actually planning to abandon physical passports, because that would be the logic of this situation. I will support this amendment if it is put to the vote.

Extradition (Provisional Arrest) Bill [HL]

Lord Duncan of Springbank Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 14th October 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I add my regret about the position on the European arrest warrant. Our post-Brexit arrangements in the realm of security and policing seem precarious or, at best, a poor substitute for what we have now.

When noble Lords debated what went to the Commons as new Section 74B(8)—the subject of Amendment 3 —the noble Lord, Lord Kennedy, said that the conditions were a “reasonable and proportionate” process. I say they are more important than a process; they are about consultation, assessing the abuse of the Interpol Red Notices system, and trust in the system. The Government gave assurances then that they would not include countries likely to abuse the system and that the amendment would not conflict with how the Government plan to deal with the regulations.

I will focus on what was our amendment, which is currently the new Section 74B(9), which the Government seek to remove by Amendment 4. That provides for regulations to Schedule A1 that can add specified category 2 territories. That is jargon for something quite important.

The amendment has an impeccable pedigree. The noble and learned Lord, Lord Judge, and the noble Lords, Lord Anderson of Ipswich and Lord Kennedy, supported it at previous stages—I am glad that the noble Lord, Lord Anderson, will be speaking on it shortly. I can think of no reason for the Government resisting this provision other than “It is not how we do things”, or possibly “It was not invented here”. I took comfort that I was not on the wrong track by the support that I received from Cross-Benchers, eminent lawyers whose perspective could not be thought to be distorted by party-political considerations, although I do not think that this issue is party-political.

The provision that the Government seek to remove allows regulations to designate only one country at a time. There is a simple reason for that: to enable Parliament to play its proper part. We all know that such instruments cannot be amended, so if we are presented with a list of countries including one bad apple, in human rights terms, could we expect Parliament to agree to the bad apple to avoid losing the arrangements with all the others, or to reject them all when only one is an issue? I used the examples of an order applying to both the Netherlands and Turkey, or to Sweden and Venezuela. No two countries are quite alike. I could extend the first pairing to a trio, as someone said to me yesterday: France is quite different from Turkey, and Turkey is quite different from Syria.

At previous stages, noble Lords explained their concern that the Government’s judgment could be swayed by factors unconnected with the assessment of a country’s human rights record. Favours for trade concessions were mentioned. That has happened. The noble and learned Lord, Lord Judge, put it neatly, saying that the time may come when another Government seek a favour from this country or we seek a favour from them. He gave an example: “Do you really want our safety equipment? Do you really want our artificial intelligence? Let’s have a mutual extradition arrangement.” He could also envision the possibility—not immediately, but not remotely either—of the Government of the day wishing to associate themselves with a country that shared their political views but was nevertheless not a desirable country with which to have these arrangements. The noble Lord, Lord Anderson, described the provision as meeting the problem of a non-amendable instrument without insuperable difficulties for the Government.

The Government have argued that countries can be added in multiples under the parent Act and so there is no need to make a change, but should we not always be on the lookout for better ways of doing our job of scrutiny? They also said that the courts would throw it out if a country did not respect rule of law. However, the courts can only consider applications from individuals, case by case. They can only consider what the Government put in the regulations when those regulations are applied and the individual affected challenges the action.

The Minister has told the House that she would not present an SI that she knew would run into trouble. I say this so often that the Minister must think that I have got it in for her—I really have not, not personally—but we must depersonalise these things. She may be the Minister for longer than I am here, but she will not always be the Minister. There may be a Government whose judgment she questions. She says that the House could vote down an instrument. The House is responsible and would not want to because of one bad apple.

At Second Reading in the Commons, the Minister said that the Bill was not concerned with the UK’s extradition relationship with other countries, but it is. He said that when a fugitive is wanted for a serious offence by a trusted country, he is brought before a UK court, but that is not the issue. The Commons were told that the amendment is not required and is unnecessarily burdensome. It had not occurred to me but, as a Member put it, considering the Government’s vocal support for the Magnitsky Act to deter human rights abuses, it would be hypocritical to oppose an amendment that has the same purpose.

In Committee in the other place, the Minister, James Brokenshire, said:

“Any additions will be dictated by the will of Parliament”—


that is what this provision would put in place—

“not by an unusual process such that this would impose. If a country is proposed that Parliament does not agree should be specified, then the regulations will be voted down in the normal way. We judge that that remains the rightful process.”—[Official Report, Commons, 8/9/20; col. 567.]

It may be an unusual process, but why is the process invariable? Voting down regulations listing 10 or 20 countries would cause a lot more nuisance for the Government than voting down regulations relating to a single country and there would be very little pressure on parliamentary time.

We are not challenging the premise of the Bill, but we are defending the sovereignty of Parliament, as distinct from the Executive. I still do not understand the technical, practical or political arguments. We would deal with a bundle of instruments, one after the other, which is a bit tedious, but does that matter? There is no delay, just a sensible opportunity for each House properly to give or withhold approval. I fail to see why the Government feel threatened by such a common-sense proposal. When the moment comes, I will seek the opinion of the House.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the following Member in the Chamber has indicated their desire to speak, so I call the noble Baroness, Lady Ludford.

[Baroness Ludford (LD)]

My Lords, I add my regrets to those expressed by other noble Lords on the loss to this country of the European arrest warrant. I was in the European Parliament when it was born, nearly two decades ago, and my last initiative as an MEP was to write a report on reform of the European arrest warrant, in which the former Home Secretary, Theresa May, expressed great interest before making some unilateral UK amendments about its implementation. It is not a perfect instrument, but it is a lot better than the alternatives, particularly the 1957 extradition convention.

I am focusing on Amendments 4 and 4A. In Committee, the Minister told us:

“The Government have no intention of specifying countries likely to abuse the system to political ends.”—[Official Report, 5/3/20; col. GC 364.]


First, Governments can, and sometimes do, change. Secondly, intentions, however sincere when made, do not always survive unscathed. Presumably the Government intended to act in good faith in respecting the EU withdrawal agreement that they negotiated, signed and recommended to Parliament and the country, but now they want to give themselves the power to override a key part of it. They no doubt intended to keep their promise to uphold high standards of food safety and animal welfare. If they reach a trade agreement with the United States, imports from there will not comply with those standards and our own farmers will become uncompetitive, putting pressure for deregulation here.

As my noble friend Lady Hamwee mentioned, there is also apprehension about what pressure might be exerted by potential trade partners. Outside the EU, the UK is more vulnerable because it is only one country. As part of a bloc of 28, we could say: “Sorry, we’re bound by EU law, we can’t give you an individual concession, so there is nothing we can do, chaps.” We are much more exposed to that pressure if trying to reach a bilateral trade agreement with a single country.

Those are the reasons of principle why we need individual statutory instruments, country by country. There are also practical reasons. By insisting that this House takes an all-or-nothing approach, the risk is that the House feels compelled to vote down an SI that contains some perfectly respectable countries and one dodgy one—my noble friend gave some examples. This would waste more time than if the Government had the good sense to take them one by one. It is quite puzzling why they are being obstinate in refusing to see the good sense of that. It would be far more efficient, effective and respectful of human rights and the transparency of parliamentary scrutiny to allow Parliament to focus on one country at a time. That need not slow down the process at all; it could possibly streamline it.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

Are there any other Members present who would like to contribute at this point? If not, we can move on. The next speaker is the noble Lord, Lord Anderson of Ipswich.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

Amendment 62 withdrawn.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

We now come to the group beginning with Amendment 63. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make this clear in debate.

Amendment 63

Moved by

--- Later in debate ---

Amendments 64 to 76 not moved.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

That brings us on to the group beginning with Amendment 77. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate.

Amendment 77

Moved by

Hong Kong British National (Overseas) Visa

Lord Duncan of Springbank Excerpts

Wednesday 29th July 2020 Lords Chamber

[Baroness Williams of Trafford]

I agree with the noble Baroness that this is a difficult situation. The Foreign Secretary said that we need to be honest about the situation that we are in. We cannot force China to let BNO citizens come to the UK if China chooses to put up barriers. But as China is a leading member of the international community it must be sensitive to its international reputation and the free will of BNO citizens in Hong Kong. We will continue to honour that commitment to those holding BNO status.

[Lord Duncan of Springbank (Con) [V]]

What engagement has my noble friend had with the devolved Administrations regarding participation in any future scheme?

[Baroness Williams of Trafford]

My Lords, I am dying to know what the other passengers on the noble Lord’s train are thinking. As the noble Lord will know, we consult and engage with the devolved Administrations through every part of our considerations on issues such as this.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Duncan of Springbank Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, although I too am pleased to speak in this Second Reading, I am sorry that we have this Bill at all. Like so many of our fellow citizens, I regret it. It is a Bill that makes provision to end the excellent free movement that we had under EU law in exchange for what I believe to be a punitive points-based system.

Like my noble friend Lord Rosser and others, I will concentrate on the care sector. We have seen how much care workers do under the pressures of the virus, and how the problems of funding and security have created problems for the care sector and shown how it is often treated as a poor relative of the NHS. We need to give more consideration to the care sector’s value and to work to keep its workforce; otherwise they will continue to be an afterthought in immigration, as well as other areas. As others have said, part of the new points-based immigration system disadvantages them. They will be excluded from the new health and care visa. Even senior care workers would not qualify with the minimum salary threshold. It is unjust and unfair, particularly on top of the lack of support they have had during the Covid epidemic. I hope this matter can be dealt with and looked at more carefully in Committee and on Report.

As the noble Lord, Lord Morrow, and my noble friend Lord McConnell, did, I will touch on whether this applies to the whole of the United Kingdom. As a Scots Peer, I think that immigration must remain principally a UK-wide competence, as the noble Lord, Lord Morrow, said. I strongly disagree with the SNP’s proposal for an alternative immigration system for Scotland. That is very different from the very limited scheme that my noble friend Lord McConnell introduced, which he described earlier. Scotland’s immigration needs are not significantly different from other parts of the United Kingdom. Anyway, how could we prevent immigrants moving around the UK without border controls? The Deputy Speaker will know and I am sure that he would agree that the last thing we need are border controls at Gretna and Berwick.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

The next speaker is the noble Lord, Lord Strasburger.

Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020

Lord Duncan of Springbank Excerpts

Friday 10th July 2020 Lords Chamber

[Lord Kirkhope of Harrogate (Con) [V]]

My Lords, I speak as a former Home Office Minister responsible for UK borders. In general, of course, I support any measure that helps us to fight terrorism and major criminality and denies opportunities to threaten our citizens. This is a piece of secondary legislation providing codes of practice for our officials. I was one of those who was involved in the drafting of many EU directives in the field, and we ensured that certain principles were always enshrined in the retention of data, including biometric data. In the GDPR, for instance, retention of data should be for no longer than is necessary. That principle, together with the generally accepted requirements for holding and using data of necessity and proportionality, has been the basis of all EU and UK measures for some years. I hope that my noble friend concurs with those principles.

I note the new guidance on obtaining national security determinations which is, of course, subject to safeguards and guidance under the Protection of Freedoms Act 2012, but I still have concerns. Under the PNR directive, for which I was directly responsible, data held should be deleted after five years and depersonalised after six months. We have evidence that, on that basis alone, many attacks on our own country have been deterred. In pursuing these new timescales for retaining data and preparing new guidance, is my noble friend the Minister taking into account the comparable provisions, limits and protections which are enshrined in EU directives, to which we are still party? Is she confident that this measure will not impede the necessary co-operation and real-time operability with our European neighbours once the transition period ends, nor provide an unnecessary complication in our current negotiations for a comprehensive security agreement with the EU?

I am sure my noble friend will agree that we certainly should not be introducing measures or standards which further distance us in areas where future joint efforts with our immediate neighbours to defeat and deter terrorism and major criminality are so vital to UK interests.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I call the noble Lord, Lord Snape. No? Then I call the noble Lord, Lord Chidgey.