Public Order Bill

Lord German Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I appreciate the significant concessions the Government have made on serious disruption prevention orders. I believe that the clause is in a better place than when it was introduced, in part thanks to the efforts across this House; in particular, those of the noble Lord, Lord Anderson.

My amendment to the Minister’s Motion D seeks to make it explicit in the Bill that a magistrates’ court may issue an SDPO only if it reasonably believes that a person’s conduct has been frivolous or vexatious, to the extent that it has gone beyond a genuine expression of their inalienable right to protest. This criterion is in addition to, not instead of, that which requires that a person must have been convicted of two or more protest- related offences or contempt of court over breaches of an injunction. We believe that this is an important safeguard to the flawed clause, which we accept that the other place has voted to keep in the Bill. This change will ensure that the courts, when assessing whether someone’s behaviour warrants a prevention order of this kind, will have to rule explicitly that they have gone further than what can reasonably be interpreted as genuine protest. We hope this will protect those exercising their democratic freedoms in good faith.

I have spoken to colleagues across the House, and I will not seek to test the opinion of the House on my Motion, but I will listen with interest to other noble Lords’ contributions to this very short debate. I beg to move.

[Lord German (LD)]

My Lords, we on these Benches accept that the amendments have been made in the Commons but are still concerned that they do not go far enough. Taking the matter back to the beginning, the bar set on which people can be convicted or the orders can eventually be issued is based on the balance of probabilities. That matter was the source of a great deal of discussion in this House. A bar has been set which is basically non-evidential, because no evidence has to be proven of what has happened. Any amendments which would raise that bar just above a zero threshold are to be commended.

Having made the orders less draconian and brought them in line with the terrorism prevention and investigation measures, the SPDOs are to be imposed on protesters, taking away their rights to freedom of speech and freedom of expression, on the balance of probabilities. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported, in its review of public order policing, that it doubted that these orders are workable, even with a breach of the order occurring. A person attending a protest peacefully, in breach of an SPDO, is unlikely to be treated by the court in the same manner as a potential terrorist. Courts would look at the effect of an order and measure that against the breach of human rights legislation, and, in the end, the effect of an order breaching a person’s human rights could well override the effect of the order.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights, but only if a court was satisfied, on the balance of probabilities, that depriving people of their human rights on the weakest of evidential tests was sufficient. Therefore, there is an expectation that the courts would use a breach of human rights legislation to override the effect of the SPDO.

In seeking to raise the bar from zero—the bar is sitting on the floor, as no evidence is required—these amendments at least provide an evidential activity. They require an officer to have observed the evidence behind the requirement. The requirement in the amendments before us may not be sufficient, but it certainly lifts the bar, in relation to evidence, off the floor. In fact, we need to help police officers. Police officers may be faced with situations without evidence, such as listening to somebody’s hearsay about a protester. Alternatively, they may have it in their mind that possible action will take place if they assume that a protester, who is standing peacefully and undertaking a peaceful activity, could well jump across the road, lie on the ground and stop the traffic. In those cases, they would not have any evidence that the person was about to conduct themselves in a dangerous manner, so it would be effective to introduce provisions for that. This set of amendments could provide for those matters, but, as I have said, in a very limited way.

As the noble Lord will not press his amendment to a vote, it seems to us that the Government have to consider how the courts will deal with these matters when they are placed before them, when we have human rights legislation guaranteeing freedom of speech, freedom to join together with others and freedom of expression. When all those rights are being harmed, what will the courts say and are the Government sufficiently ambitious that they think that their evidence based on these rules will give the human rights opinion any credence whatever?

[Lord Sharpe of Epsom (Con)]

My Lords, again, I am grateful to both noble Lords for their thoughtful and considered contributions to this debate. As I have already detailed, the Government listened carefully to your Lordships’ concerns regarding the serious disruption prevention order measures. Orders will now be applied only where individuals have been convicted of protest-related offences or breaches of protest-related injunctions on at least two occasions.

The noble Lord, Lord German, argued that serious disruption prevention orders contravene the European Convention on Human Rights. They do not. The right to protest is fundamental and despite sensationalist claims such as that, that will not change. These orders will ensure that individuals who deliberately cause serious disruption more than twice will face justice. Articles 10 and 11 of the ECHR set out that everyone has the right to freedom of expression, assembly and association. However, these rights are not absolute and must be balanced with the rights and freedoms of others.

I hope your Lordships will be satisfied that the Government have responded with a very significant offer that addresses the key concerns expressed throughout the passage of this Bill. The Bill will better balance the rights of protesters with the rights of individuals to go about their daily lives free from disruption and address the ever-evolving protest tactics we have seen employed by a selfish minority of protesters. Blocking motorways and slow walking in roads delays our life-saving emergency services, stops people getting to work and drains police resources. The British people are rightly fed up with it and are demanding action from their lawmakers.

It is time for this Bill to become law. I thank the noble Lord for saying that he will withdraw his Motion.

Manchester Arena Inquiry: Volume 3 Report

Lord German Excerpts

Tuesday 14th March 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I start once again by praising the work of our intelligence agencies and those who work for them. They help keep our country safe. As the Home Secretary pointed out in her Statement to the other place, MI5 and the police

“have disrupted 37 late-stage attack plots”—[Official Report, Commons, 6/3/23; col. 41.]

since 2017—plots that no doubt would have cost lives.

However, in a democracy, even the work of our secret services should be open as far as possible to scrutiny and be accountable with, where necessary, difficult questions asked. Such questions have arisen from the Manchester Arena attack and the public inquiry ably chaired by Sir John Saunders.

Before posing some of these questions and comments, I once again express the profound sorrow we all feel at the 22 people who were brutally murdered, the more than 1,000 injured and the many others psychologically damaged. We once again send our heartfelt condolences to all those affected by this barbaric act.

The open volume 3 Saunders report makes a wide range of recommendations. Can the Minister outline how these are going to be taken forward? These are the published ones, but what about the secret reports and recommendations that will be contained in that? Can the Minister confirm to us that the ISC, as a parliamentary scrutiny committee, will be fully informed and involved?

What about the families so tragically and awfully affected? How will they be supported and informed as we move forward?

The Minister will also know that Figen Murray, many of the Manchester Arena survivors and all of us are waiting to know the government timetable on the introduction of the so-called Martyn’s law. What is that timetable, and can the Minister say any more than what was said in the other place, which was, in essence, shortly and in due course? It would be helpful if we had more detail as to when Martyn’s law might be introduced.

Sir John concluded:

“There was a significant missed opportunity to take action that might have prevented the Attack”,


and that there was a failure to act on information and to share information. Is the conclusion that this is due to individual failures of judgment by MI5 officers, or is it part of a wider systemic failure in the security services? Sir John said that others were involved in planning and carrying out the attack. Can we be assured that progress is being made in arresting the others?

The terrorist bomber frequently visited someone who was in prison for terrorism offences. That did not, it seems, trigger any alarm. Are the Government looking at Sir John’s recommendations about changes in approach to visits to terrorist and extremist prisoners?

In the report, we are also told that the bombers used a video online to help them make the device. How is it possible for a video such as that not to be taken down? Will the Online Safety Bill deal with matters such as this?

Concerns were raised about Libya and the Security Service not sufficiently understanding these threats. Has this led, or will it lead, to any change in how we assess and reassess threats—with no fixed view on the hierarchy of such threats but one based on evidence now and as it emerges?

Can the Minister also comment on the fact that some of the families still feel that, because of the secrecy of much of the evidence provided by MI5, they received less information than they wanted? Much of the proceedings was held in camera, which was justified because, if it were not, such evidence would not be made available at all—that is the official explanation. Does the Minister believe that there is a paradox here, because the Manchester Arena inquiry was a public inquiry, yet some of it was not public. That is unlike an inquest, where people can be compelled to attend and give evidence in public. As the Spectator reported in an excellent article, this contrasts with the inquest on 7/7, another terrorist incident, where MI5 officers attended in person, appearing behind a screen and identified by a letter but still able to be cross-examined. Will the Minister look again at the boundaries in public inquiries between necessary secrecy and transparency, and at the use of public inquiries rather than inquests?

We cannot undo the past, as much as we would all like to, but all the victims and all the families deserve as much of the truth as possible. The recommendation of Sir John Saunders’s excellent report should be taken forward, alongside other initiatives such as an independent public advocate, as quickly as possible. The families deserve no less.

[Lord German (LD)]

My Lords, I echo the sentiments at the end of the contribution from the noble Lord, Lord Coaker. I too welcome the third volume of the inquiry, and thank Sir John Saunders and his team for all the work they have put in.

We must remember that our thoughts must be with the families, friends and all those affected by this atrocity. Twenty-two innocent people lost their lives, hundreds more were injured, and many thousands are emotionally and physically scarred for the rest of their lives. Those responsible for this terrible, cruel and merciless act are the bomber, his brother, those who radicalised them, and those who provided them with support. We condemn their actions. We must take steps to ensure that everything possible is done to make such a set of acts impossible in future.

The inquiry has shone a light on what must be achieved to do just that. We have to face up to the shortcomings which the inquiry has exposed, no matter how hard a reading they make, and put in place the appropriate safeguards. I welcome the Government’s Statement about how they are going to address these matters, and that they intend to press forward with all the recommendations raised by the inquiry. I will come to the closed chapters in a moment. However, much more detail is needed if this House, the public and, most importantly, those directly impacted by the atrocity are to be satisfied that everything possible is being done.

I have a number of questions for the Minister, and I will try to avoid repeating those of the noble Lord, Lord Coaker. First, the inquiry report contains closed chapters and recommendations, so can the Minister tell the House whether the Government have received those closed parts? If they have received them, can he say whether the recommendations within them will be restricted to selected Ministers, or, as I hope, that there can be engagement with the ISC, even if it is in camera, so that there will be an extent of knowledge and understanding of these issues wider than a very small group of people? As long as there is mystery, there will be misunderstanding.

Secondly, on Martyn’s law, I welcome the intention to introduce the legislation. We are promised the legislation “in the spring”. I am told that we are now, officially, “in the spring”, so when will the Government produce the draft legislation for us to scrutinise? I obviously recognise that there is difficulty in introducing the legislation itself because of parliamentary timetabling, but producing the draft legislation, which has been promised, is in the Government’s hands. I will try to help the Minister with the wording “in the spring” by asking: will it be introduced before Easter, before the Coronation, or in the official period called “the summer”?

My third question is on the issue of workforce pressure. One of the things that was quite clear from the inquiry report was that there were staff shortages, particularly in the north-west of England. If the Government intend to follow through on all these recommendations, how do they intend to meet the shortfall in personnel identified by the inquiry?

I turn to the countering extremism strategy. This was declared out of date in 2018 by the relevant commissioner. What steps are the Government taking to revise and publish a new strategy? In that context, are Prevent, Contest and the Shawcross review now being seen together as a whole? When can we expect to see their results being addressed? Will the conclusions be drawn together into a revised countering extremism strategy package, so that all the thoughts about the way forward are contained in a single document?

Finally, the Secretary of State responding in the House of Commons repeatedly said that she wanted to focus on security, not political correctness. I may be slightly dim on this matter, but can the Minister tell us what political correctness she was talking about? In the end, we all share the ambition to ensure that the people who have been most affected by this—the families, the friends and everyone else who has been scarred by this—understand that we will do everything we can to prevent it. I look forward to the Minister’s answers.

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

I thank both noble Lords for their comments and echo the remarks made by the noble Lord, Lord Coaker. As the report made very clear, responsibility for the events of 22 May 2017 lies with Salman Abedi and his younger brother, Hasham Abedi. That is not to say that we should not also remember the victims and their families; it was a particularly awful tragedy and I am sure that all noble Lords’ thoughts and sympathies are with them.

Like the noble Lord, Lord Coaker, I congratulate the intelligence agencies. As he pointed out, they have stopped 37 attacks in recent years, as was made clear, and frankly they deserve our admiration for that, notwithstanding any particular failures or problems that have been identified through Sir John Saunders’ report. While I am thanking people, I also, obviously, thank Sir John for his comprehensive report, which has considerably helped in forming our response—not just the Government’s response—to such events and how we deal with them going forward.

I will do my very best to answer all the various questions that were asked. Obviously, if I miss anything inadvertently, I will commit to write. Both the noble Lord, Lord Coaker, and the noble Lord, Lord German, asked about the Statement. Volume 3 has been published and the chairman is determined to monitor recommendations that have been made with the ISC. Volume 3 “open” has only just been published; Volume 3 “closed”, to my knowledge, has not yet been shared with the Government. The Government will carefully consider the report’s findings and recommendations in full and consider any recommendations Sir John makes about the role the ISC can play, in light of the memorandum of understanding that exists between the committee and the Government, which we have discussed many times in the last few days. As noble Lords will be aware, the MoU is available on the committee’s website.

Work on Martyn’s law, which both noble Lords asked about, is progressing at pace and legislative proposals will be taken forward when parliamentary time allows. In the interim—I suppose this the option D that that noble Lord, Lord German, did not identify—we will be publishing a draft Bill in this parliamentary Session. I cannot say more than that yet. I appreciate that it has been several years since the attack, and while we accept that we have to deliver this as quickly as possible, we need to develop proposals that realise effective outcomes and truly make the public safer, and to develop appropriate and proportionate provisions which consider the impacts on the premises that will end up being in scope.

The noble Lord, Lord Coaker, asked about prisons and prison visits and the fact that Salman Abedi was able to visit a particular character in prison when he was a terrorist offender. The man’s name was Abdalraouf Abdallah. Abdallah was a category B prisoner and this was arranged through the standard visits process. Under the new approved contact scheme, we are enhancing checks on visitors and communications linked to certain offenders, including tagged offenders, regardless of their categorisation.

The noble Lord, Lord Coaker, very sensibly if I may say, quoted the Spectator, which I was delighted to hear from the opposite side of the House, in referencing the 7/7 inquiry. In effect, he was asking what was restricted from the final report, and whether the Government are effectively hiding anything. The answer, of course, is no. The inquiry was rigorous, evidence-based and had access to every bit of information that MI5 and the police held that was relevant to the attack. It was established for the very purpose of ensuring that information that was national security-sensitive could be fully considered as part of the judicial investigative process. The nature of MI5 and counterterrorism’s police work means that a great deal of what they do and how they do it has to remain secret. The chair acknowledged that. He said that revealing details of how they operate would hand our adversaries—in this case, terrorists—an advantage that would impact the UK intelligence community’s ability to keep the country safe.

MI5 and counterterrorism policing gave as much evidence as they could in public, and it was for the chair to determine what was or was not made public. He was clear that he would make his own judgments on this and said that he would

“not allow the proceedings to be ‘stage managed’ by the Security Service”,

Greater Manchester Police or others, and that he would not

“act as a rubber stamp”

when taking decisions on restriction orders. That is a pretty clear statement that he certainly conducted his inquiries in the most robust way that he could, which was certainly appropriate to the circumstances, based on the national security considerations that he identified.

On the video that was published, I am not as familiar with the Online Safety Bill as perhaps I ought to be, so I shall reserve judgment on that—but I certainly hope that it would be taken into account, and I shall most certainly also make sure that my colleagues in the relevant department are aware of the noble Lord’s request.

On inquests and the various changes that have been made or considered, I appreciate that it is a difficult problem. It is probably not for me to comment on the nature of coroners’ inquests and what have you. All I can say is that the law was carefully looked at, and it was decided that it would not be appropriate to change it in these circumstances. I think that is fair, but I appreciate that it is not the message that the families want to hear. I feel for them, but I also understand the broader context in which that question was asked.

On resources, we have invested heavily in counter- terrorism. The new Counter Terrorism Operations Centre was announced in 2021, which brings together partners from counterterrorism policing, the intelligence agencies, the criminal justice system and other government agencies. That will allow minute-by-minute collaboration between teams in the police and MI5. I hope that goes some way to answering the concerns of the noble Lord, Lord German, about resourcing. It is adequately resourced with substantial amounts of money. From memory—my papers are in a bit of a mess—I think that the number is about £370 million over the next couple of years. It is definitely going to improve cross-agency communication, which—to bring it back to the point that the noble Lord, Lord Coaker, made—was perhaps what Sir John meant when he talked about significant failures.

I have read a large amount on this subject, and I say that the judgments of security officers are obviously finely calibrated, and they are taking into consideration a number of factors. Perhaps there were failings and they need to reflect on those failings—and MI5 has been very candid about making it clear that it holds itself accountable for this. But it is important to bear in mind that these are people making very careful judgments based often on flimsy evidence. We should take that into account when considering what they do and how they do it.

The noble Lord, Lord German, asked me what we were doing on Prevent. Of course, as Sir John mentioned, Prevent is not necessarily something that Salman Abedi would have been referred to—and, if he had, Sir John also acknowledges that it may not have made any difference. As the noble Lord will be aware, we also published the report on Prevent relatively recently. All the recommendations and considerations in that report are being carefully considered in the Home Office, and I am sure that we will have much more to say on that in due course. I think that I have answered all the questions.

[Lord German (LD)]

Perhaps the Minister could tell us about the “political correctness”.

[Lord Sharpe of Epsom (Con)]

I am sorry, but I have absolutely no idea what my right honourable friend the Home Secretary was referring to. I could speculate, but I would prefer not to.

Police Misconduct Cases

Lord German Excerpts

Monday 6th February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, the appointment of staff is a matter for police and crime commissioners but, as the noble Lord is right to point out, they are required by legislation to seek the views of their police and crime panel when appointing to senior positions within their office. I note Mr Veale’s resignation but the Home Office has no role in such appointments and it would therefore be inappropriate for me to comment on this matter directly.

[Lord German (LD)]

My Lords, in matters of police misconduct, there is a delicate balance to be drawn between local accountability and local flexibility on the one hand and consistency in dealing with these cases on the other. Does the Minister agree with the inspectorate that there is a need to standardise decision-making processes when dealing with misconduct, and do the Government accept all the recommendations contained in the An Inspection of Vetting, Misconduct, and Misogyny in the Police Service report?

[Lord Sharpe of Epsom (Con)]

My Lords, on the latter point, I think the police forces have accepted all the recommendations. As regards the consistency of decision-making, that is one of the things that the dismissal review panel is going to consider. The first term of reference is to:

“Understand the consistency of decision-making at both hearings and accelerated hearings”,


so the answer is yes.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code H) Order 2023

Lord German Excerpts

Tuesday 31st January 2023 Grand Committee

The revised code promotes the fundamental principles to be observed by the police and helps preserve the effectiveness of, and public confidence in, the use of arrest powers under the Terrorism Act 2000. I very much hope that noble Lords will support these revisions to PACE Code H.

[Lord German (LD)]

My Lords, I want to ask several questions of the Minister, not least because the recommendations to upgrade Code H are in fact non-discretionary—the policy for a code of practice. In other words, the Secretary of State has to transfer these into the code of practice without any subsequent amendment.

I have two questions, the first of which is about process. Code H says:

“This Code of Practice applies to, and only to … persons in police detention after being arrested”.


The word “after” is important, because the first of the powers transferred into the Terrorism Act 2000 in Section 43B relates to the fact that constables “may arrest without warrant”—so this is before the arrest has taken place. There are four bullet points at paragraph 7.5 of the Explanatory Memorandum on the 2019 Act changes. The last one, which the Minister mentioned in his opening speech, is about creating powers to stop, search and detain. Again, such powers are obviously prior to the arrest being made.

If the advice on the code of practice to police officers does not appear in this document, PACE Code H, where does it occur? It cannot occur in this document because these powers are prior to arrest. That is a technical question, but if it is not in Code H, where might it be? It may be in general advice to police officers somewhere else; perhaps the Minister can tell us. Two distinct powers given by the various Acts are prior to someone being arrested; then, of course, as the Minister says, after they are arrested the conditions within the relevant Acts are clearly transferred into Code H. Clearly, if there is no explanation of where they might have advice, that leaves a certain amount of unhelpful discretion to the police, who will want guidance on this very important matter.

My second question relates to Section 43B(1), inserted into the Terrorism Act 2000. I do not want to rehearse the debate that was had when the relevant Act was discussed in this House, but it says that

“a constable may arrest without warrant a terrorist offender who has been released on licence”,

and then gives two conditions—

“if the constable … has reasonable grounds for suspecting that the offender has breached a condition”

and

“reasonably considers that it is necessary … to detain the offender”

because of a public risk of terrorism. I understand why both conditions are there, but I do not understand what advice has been given to police officers and where that advice might be. First, you would have to understand or know that the person was a terrorist offender. Secondly, you would have to understand or know whether they had been released on licence. Thirdly, you would have to understand or know what the licence conditions were for that person to be released on licence.

I understand the reasons. We had the very tragic case that the Minister referred to, but if I were a police constable, knowing that I had these powers but with those conditions, I would want to see some advice in a code of practice as to how I would understand those three conditions prior to my being able to detain a person. I must have reasonable grounds for the offender having breached the conditions of their licence and I must understand the risk of terrorism. The latter is probably much easier to understand—it could well be by observation of the circumstance—but the former would require a police officer to understand and know that this person had a licence. Given that the advice cannot be in PACE Code H, because it is prior to arrest, where, if anywhere, is it? These are important questions relating to how a police officer can operate the code of practice inherent in the primary legislation that we are debating.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this statutory instrument, which revises the PACE code of practice H to reflect the introduction of a new power of urgent arrest by the Police, Crime, Sentencing and Courts Act 2022. As the Minister outlined, this power enables the police to arrest without warrant and detain a previous terrorism or terrorism-connected offender who is suspected of presenting a further terrorism risk to the public. It also updates Code H to reflect changes made by the Counter-Terrorism and Border Security Act 2019.

As the noble Lord said, the horror of the attack at Fishmongers’ Hall in 2019 and a subsequent attack in Streatham is a reminder of the harm that terrorist-risk offenders are capable of. Following these attacks, the Government commissioned the Independent Reviewer of Terrorism Legislation, Jonathan Hall, to review MAPPA, which is used to supervise such terrorist and terrorist-risk offenders. The creation of the power of urgent arrest was recommended as part of this review.

We supported the introduction of this power during the passage of the PCSC Act and we support it now. We believe it is vital to have the right safeguards in place. With the introduction of such powers comes the possibility of unintended consequences or missed opportunities. I look forward to the Independent Reviewer of Terrorism Legislation considering the effect of the introduction of these powers, as well as the other new powers introduced to improve the management of terrorist offenders on licence, and the 2019 powers that Code H now includes.

I was just reflecting on my memory of the attack in Streatham, which is not that far from where I live. I have no inside information on it other than what I read, but I read in the papers various bits of speculation about the officers who were tracking that terrorist offender, who was out on licence; they observed a crime being committed and intervened, and the offender was killed. The speculation I read in the press was about how that process was managed and the huge resource-intensiveness of tracking such people when they are out on licence. Can the Minister say anything about whether this change to the codes of practice within Code H is partly a result of the large resource implications of tracking such offenders when they are out on licence? However, we support the changes.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions.

The noble Lord, Lord German, asked me, first, in essence, where is the guidance for the police pre arrest? Of course, the guidance is operational in nature, so it will be issued by Counter Terrorism Policing and the College of Policing, which will issue it internally. Any guidance for officers is of a highly tactical and operational nature and will therefore obviously have to sit within the police’s own guidance rather than a government-issued code of practice.

On how to determine whether an individual is on licence for a terrorist offence, this will be understood through close working by Counter Terrorism Policing and the Prison and Probation Service, which will include information-sharing and briefing about terrorist offenders on licence. If they breach their licence and are recalled, a warrant will be out for their arrest. Obviously, policemen can find out whether an offender is out on licence by checking their details on the police national computer, which will flag it.

In answer to the noble Lord, Lord Ponsonby, about potential operational constraints on the police because of potentially large numbers involved, obviously, I hope that there will not be a large number of people subject to these powers, but I am quite sure that if Counter Terrorism Policing and more routine and—shall we say, traditional?—policing come up against capacity issues, we will certainly hear about it and come back to debate this in further detail. I fear that I cannot supply any better detail than that at this point. However, I will have a dig and, if I can find anything, I shall come back to the noble Lord in writing, if that is acceptable.

[Lord German (LD)]

Just before the Minister moves on, reflecting on the answer he just gave me about the internal guidance, is that guidance publicly available? If so, has it already been written and where can we find it?

[Lord Sharpe of Epsom (Con)]

I do not know whether it is publicly available; I am afraid I shall have to find that out as well and come back to the noble Lord. I should be somewhat surprised if it is, but you never know.

In closing, I reiterate that this order provides for the revised PACE Code H, which relates to the detention and treatment of people arrested under the Terrorism Act 2000 and applies across England and Wales, to be brought into force. This revised PACE Code H will govern the fundamental principles to be observed by the police when exercising the new urgent arrest power in Section 43B of the Terrorism Act 2000 and will help preserve the effectiveness of and public confidence in the use of police powers of arrest. The updated code will also reflect various changes made to primary legislation by the 2019 Act, as well as other minor updates to ensure that the terminology in PACE Code H is up to date with wider legislative changes. I can pre-empt writing a letter to the noble Lord, Lord German: I fear the guidance is for internal police use only, so it is not public. That said, I thank both noble Lords for their broad support for this SI and I commend it.

Police and Crime Commissioners: Accountability Arrangements

Lord German Excerpts

Wednesday 25th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, the potential benefits and disbenefits of a recall mechanism were considered by the two-part review that I referenced in my Answer. It was decided that that would be to create a whole new body of bureaucracy and unnecessarily expensive. Ultimately, the public have the right of the ballot box, if you will, to determine the outcome of the PCC.

[Lord German (LD)]

My Lords, given the concern there has been about the vetting of candidates for the police forces and the uneven procedure of granting face- to-face interview after assessment for candidates, does the Minister believe that there is now a need for a tighter role and concern for making sure that the best practice in the appointment of police officers is now part of this scheme which rests either with police and crime commissioners or the central Minister concerned?

[Lord Sharpe of Epsom (Con)]

As the noble Lord will be aware, after referencing a number of conversations that have been had in the House over the past few days, all of those things are happening with regard to vetting, police officer recruitment and so on.

Asylum Seekers: Syria, Afghanistan, Eritrea, Iran and Sudan

Lord German Excerpts

Tuesday 24th January 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

The principle is clear in the refugee convention that people claiming asylum need to be in the country in which they seek refuge, having come directly from that country. While we sympathise with people in many difficult situations around the world, we are not bound to consider asylum claims from the large numbers of people overseas who might like to come here.

[Lord German (LD)]

My Lords, we learned from the Home Secretary and her team giving evidence to the Home Affairs Select Committee that a hypothetical 16 year-old orphan from an African country such as Sudan or Eritrea fleeing war and religious persecution, with siblings legally in the United Kingdom, has no safe or legal route to seek refuge in the United Kingdom. Why has this happened?

[Lord Murray of Blidworth (Con)]

As the noble Lord will have heard in my recent Answer, the principle is that you claim asylum in the first safe country you reach. The question Mr Loughton posed at the Home Affairs Select Committee is answered like this: depending on the country you are from, you could engage with the UNHCR; that would be a way of getting leave to enter the UK in order to put in an asylum claim, but clearly, there are some countries where that would not be possible.

Immigration (Leave to Enter and Remain) (Amendment) Order 2023

Lord German Excerpts

Tuesday 17th January 2023 Grand Committee

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

My Lords, the order, laid before the House on 7 December 2022, is required to enact one very minor change to the legislation which sets out the form and manner by which leave to enter the United Kingdom is granted and refused. It will amend the eligibility criteria for people seeking to enter the United Kingdom via an automated e-passport gate, or e-gate, so that eligible, accompanied children as young as 10 may do so. The lower age limit in the present instrument is 12.

This statutory change is needed to enable a limited trial to take place in the February half term, which will examine whether the lower age limit for entry via an e-gate should be 10 years, rather than 12, moving forward. We hope that this will have the effect of accelerating the passage through the airport of families with children aged 10 and 11. In order to carry out the limited exercise—the pilot—it is necessary in law to first pass this order.

The proposed proof of concept exercise will take place, as I said, in the February half term. It will be limited to three airports: Stansted, Heathrow terminal 5 and Gatwick’s north terminal. Once completed, the Home Office will make an assessment of whether the lower age limit of 10 should be more widely adopted.

The Government’s ambition for our future border involves making maximum use of automation. The majority of passengers will routinely cross the UK border using automation as their only point of contact. Indeed, this ambition was set out in last year’s New Plan for Immigration strategy, in which the proposed proof of concept involving younger passengers was made public. Increasing, in a controlled manner, the number of passengers eligible to use an e-gate is a logical next step.

Noble Lords will be aware that some form of automation is already used by large numbers of people passing through the UK border. Indeed, there has been significant widening of the pool of nationals eligible for e-gate entry in recent years. The e-gates started in 2008 and there has been progressive expansion. A previous amendment to the 2000 order in May 2019 extended e-gate eligibility to visitors from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America.

The continued use of e-gates should be seen in the context of the development of our new global border and immigration system, which makes better use of data, biometrics, analytics and automation to improve security and fluidity across the UK border. The use of e-gates is an important part of that approach, as they provide a safe, secure and efficient means of processing arriving passengers, allowing our highly trained Border Force officers to focus their efforts on those who seek to abuse or exploit the system and those who are vulnerable, as well as wider border threats.

For eligible families with young children, there are obvious advantages to being able to enter via an e-gate, in that they may enter the UK swiftly and effectively without having to queue to be seen by a Border Force officer. We believe that this in turn benefits others by minimising queuing times and bottlenecks at busy UK ports, especially at peak times of the year, such as half term or the summer school holiday season.

There are a number of important questions that must be answered before a permanent lowering of the lower age limit. These include whether children aged 10 and 11 have the cognitive ability to use the technology efficiently and, indeed, whether the technology is able to process such young passengers. It is because of these and other considerations that we must first conduct this short trial, which will be closely monitored by officials and have its results rigorously analysed.

Needless to say, the Home Office takes most seriously its statutory duty to safeguard and promote the welfare of children. We will use the live trial to consider whether there may be any unintended consequences for the welfare of younger passengers, such as anxiety if they become temporarily separated from their parents. To be clear, there will be no decision to extend e-gate eligibility to younger passengers if we consider that doing so would expose them to any safeguarding risks that cannot be mitigated.

Although this amendment enables us in law to allow eligible passengers younger than 12 to use an e-gate, it does not confer a right on those passengers to do so. It does not mean that passengers aged 10 and 11 must be able to use an e-gate at any UK port with that facility. Eligibility will be limited to accompanied 10 and 11 year-olds of eligible nationality at the three participating ports, and only for a 14-day trial period. At other ports, the lower age limit will remain where it is currently set: at 12 years of age.

This order enacts the most modest changes to its parent legislation but allows for a significant next step to be taken in developing a secure and smooth border that demonstrates to the rest of the world that the UK is open for business. I commend it to the Committee.

[Lord German (LD)]

My Lords, I recognise that this is a very small change to the legislation but I am of course tempted to stray into other immigration and right-to-remain areas. However, temptation is not necessarily the best way of approaching this order so I will stick to the instrument before us.

The first thing I want to say is that I have just returned from a parliamentary delegation. My delay was such that I was not able to find any transport whatever from Heathrow Airport; I would have had to sleep on the floor had I not been able to take a taxi. The reason for that was the snaking queues. If you extend the eligibility, which is a reasonable thing to do, you must have a sufficiency of e-gates. Clearly, there are insufficient numbers at Heathrow. This happened late at night but it could have been early in the morning, or whenever; I have experienced the queue being quite extensive probably three or four times in the past five months. Extending the queue by giving more people this opportunity does not solve the real problem, which lies in an insufficiency of e-gates.

There are a number of related questions about children. I have observed them queueing with their families to get through on a separate basis. I have also observed people who are elderly or need support being helped by a family member to make sure that they put their passport in the slot and withdraw it in the right way. It is not easy to do that. The main support that was given was having an official standing by who could tell people exactly what to do. I wonder whether there are sufficient staff to handle an increased number, given the difficulties already being experienced.

It is likely that, when people put their hand on their passport and put it on to the reader, it will not work the first time. I have never had a reader work with mine the first time—well, perhaps once. It has always been after two, sometimes three, attempts. That is nothing to do with me because my hand is in the same place and it is the same passport. I have never understood why it fails each time then, on a subsequent occasion, putting it through works. That may be the technology; it has worked on the first occasion in other countries but not here in the UK. I have no idea why that is.

The efficiency of the e-gate system needs to be improved as well. I observed in front of me, having had plenty of time to watch as the queues lengthened, how many people had to go through more than one attempt to get the gate to open. It needs to be improved in efficiency. I would like to understand, if the Minister can tell us, whether gate efficiency can be improved and what the problems are in the second, perhaps third, attempt to get them to work.

The other problem that this test check of an age group will come against is when families have one child of 10 and an eight or seven year-old. They are not going to separate; they are going to take them together. You have to have a family in which there is a 10 year-old and any other children have to be older than 10. While it will be an experiment, I have no idea—perhaps the Minister can tell us—of the number of families coming through with only children aged 10 or older with them and who will be able to take advantage of this.

The other question I have is about the height of individuals. Anybody who has taken any children to a theme park will know that they have measures of height by which you can take part in certain rides. When you come to the positioning of a child against it, is there a height problem for younger children who are perhaps small in stature and will have to put their hand almost as high as their head to get their passport in? Will the machinery accept that? I hope all of this has been thought out. If it has not, it will probably become clear when the experiment takes place.

My final point concerns what you might call an ESTA approach in USA terms—that is, where you have to complete a document in advance to visit. Will the system already have the ability to understand such a certificate when the UK introduces them? Will it already be built into the software? I think it applies to every country—apart from the UK and Ireland, obviously—that currently has the ability to use these e-gates. As I understand it, there will be a requirement—the Minister can confirm this—to fill in an ESTA-type document that deals with your entry. Will the software in the e-gate system accept that, so that the people going through will already have had that check, or will anybody with one of these certificates have to be peeled off and sent to another means of manual checking?

There is automation, obviously. Anything that can be done to speed up the system of getting people through into the United Kingdom properly and swiftly will be welcome. The only question is whether these will all be tested in the experiment that is about to be undertaken. Could the Minister address those specific issues—height, the ESTA-type certificates, the shortage of gates and whether there will be sufficient assistance—in replying to this debate? Otherwise, I am satisfied that this is a reasonable thing to do.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his helpful introduction to this order. Like the noble Lord, Lord German, I think there are a number of questions of detail that we need to ask and put on the record to ensure that, when the order goes forward, we are all clear about what it means and how the pilot will operate. Although it is a small change to the rules, it is a significant and important one. The pilot, if agreed, will require very careful monitoring.

At the heart of this is safeguarding children. That is everything, particularly when we are talking of very young children at the age of 10. Children aged 12 are obviously young, but we are entering the realms of quite young children who will be able to pass through e-gates at borders, so I was pleased that the Minister talked about the pilot testing whether that age is appropriate.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for their helpful contributions. I will certainly seek to address all the questions asked.

I will deal first with the points raised by the noble Lord, Lord German. By way of context—this also answers a couple of the points from the noble Lord, Lord Coaker—the pilot is for two weeks, or 14 days, during the half term and on those three specific sites. During the operation of the pilot, staff from the relevant team will be supervising so any problems will be swiftly rectified. As I am sure noble Lords are aware, the e-gates are clear glass, so the separation of people from one another is always limited to that clear glass and can be rectified very swiftly if necessary.

It is anticipated—I say this as the father of 10 year- old twins—that the average 10 year-old will have very little difficulty operating the e-gates, given their technical proficiency in many other things. Indeed, they may be better than some older age cohorts at successfully operating the e-gates. It is a usual experience that most families will put the children through the e-gate first and supervise the placement of the passport. It will be interesting to see the extent to which that happens during the pilot. That certainly seems to be the logical way to approach it.

At the relevant part of Heathrow where the pilot is taking place, there are 25 e-gates. It is felt that this is sufficient. Because it is happening during the half-term period, statistics suggest that there will be a lot of 10 and 11 year-old traffic, so it is a good way to test the system.

I was asked by both noble Lords why and how the age of 10 was selected. It was selected both on a cognitive basis, as we think 10 year-olds can operate it—that is certainly my personal experience—and because, from a height perspective, the technology will fit. We have used ONS height statistics, and we think that will work, but clearly it is something we want to test during the pilot. That is why we chose 10 rather than nine or 11. It has also been the international experience; in other countries 10 is the age and it seems fairly successful.

I will turn to one or two of the other points made by the noble Lord, Lord German. On the question about support, the hosts—the airport staff managing the queues—direct people and support them through the e-gates. They are contracted airport employees. They have been worked with in preparation for this pilot to ensure that they are going to provide sufficient support during the pilot and beyond. We will of course, as I have said, ensure increased support during the pilot.

Regarding what we are calling electronic travel authorisations—this is our version of the ESTA—when they are introduced the e-gates will be able to confirm the types of permission held before they allow somebody to enter the UK. I suspect that is the answer the noble Lord anticipated. I have already made the point that the ONS statistics suggest that most 10 year-olds are tall enough to operate the machine.

I turn to the questions posed by the noble Lord, Lord Coaker. At the moment it is anticipated that most children using the e-gates will be accompanied, mostly by their families. On the question about school trips, clearly it would be appropriate for a small school trip but maybe not for one with a large number, which would probably go to the primary control point. Again, we will test that through the pilot.

The next question was on how the airports were chosen. They were chosen with some care because, statistically, those three airports have been ones where there has been quite a number of children of those ages in the February half term. Those airports were selected because it will be a real-world test of the system.

Regarding Northern Ireland, we do not believe there are any ramifications in relation to the common travel area particularly. Obviously Irish citizens, as with British citizens, do not require leave to enter but can use the gates to go through the airport. It will be the case that 10 year-old Irish children can use the gates, just as 10 year-old British children can.

On the level of readiness, they have been working towards this pilot since October. It is the department’s view that the training is ready, and we are aiming for this February half-term period. If there is any intervening event, the department is obviously prepared to postpone the pilot if needed.

As to the question of rolling out nationally, the position is that this change does change the regulations. If the pilot is successful and the decision is taken to roll it out nationally, there will be no need for a further regulatory change, but we will obviously keep the House up to date in the event of that decision being made.

Turning to eligible nationalities, I appreciate that it is not clear, because it is just an amending instrument, but in the parent order, the Immigration (Leave to Enter and Remain) Order 2000, SI 2000/1161, the reference in Article 8B is to the schedule to the order. It is not terribly long, so I will read it out. It says that they consist of the EU nations, Australia, the United States of America, Canada, New Zealand, South Korea, Japan and Singapore. Clearly, over time, one anticipates that this will grow.

[Lord German (LD)]

Does that include EFTA—Norway, Liechtenstein, Switzerland and Iceland?

Police: Employment and Discipline

Lord German Excerpts

Monday 9th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

As I have said, we will be publishing the terms of reference in that review very shortly. The current system provides routes for chief constables to dismiss officers through accelerated hearings, as I have just outlined.

[Lord German (LD)]

My Lords, His Majesty’s Inspectorate of Constabulary’s report, published last November, said that

“it is too easy for the wrong people both to join and to stay in the police.”

One of the recommendations was that any candidate for the police should have a face-to-face interview with existing police officers. When that was put to the Minister in the other House, it was said that there was an expectation that that would happen. Does the Minister agree that the inspectorate has put forward a requirement, not a recommendation, for some action to take place?

[Lord Sharpe of Epsom (Con)]

From memory, there is a face-to-face aspect to the vetting and interviewing process—if I am wrong on that, I will come back and correct myself. On the report to which the noble Lord referred, he will be aware that there is a requirement for policing bodies to provide a response to the recommendations in that report within 56 days of its publication. Those responses will be imminent, in that case.

Police: Appointments in PCC Offices

Lord German Excerpts

Wednesday 21st December 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I take the noble and learned Lord’s point, and I agree: the Nolan principles should always be observed.

[Lord German (LD)]

My Lords, this Chamber has already decided that policemen facing charges should not escape those charges by resignation. Yet here we have a case of a new PCC appointing someone who is under investigation, and that investigation, as we have heard, has been delayed, in order to hold to account the chief constable. This just cannot stand. If you are appointed as a person to hold a chief constable to account and you yourself are under a sanction of gross misconduct to be heard, surely the Minister must agree that there should be regulations to avoid that circumstance. So, can he tell us what regulations are now going to be put in place in order to make sure this circumstance does not arise?

[Lord Sharpe of Epsom (Con)]

My Lords, the regulations already exist. In line with the provisions set out in Police Reform and Social Responsibility Act 2011, PCCs must follow the process set out: namely, they must notify the Police and Crime Panel of their proposed senior appointment. The panel must then hold a confirmation hearing and produce a report and recommendation regarding whether it supports the proposed senior appointment. The PCP must do so within three weeks of receiving notification from the PCC of the proposed appointment. This is all set out in statute, so the regulations already exist.

Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022

Lord German Excerpts

Tuesday 20th December 2022 Lords Chamber

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

My Lords, keeping the public safe and protecting our national security is a key priority for this Government. It is vital that our intelligence agencies, law enforcement bodies and public authorities are able to exercise the important powers contained in the Investigatory Powers Act 2016, which I will refer to as the IPA. We rightly have in place world-leading standards on transparency, privacy, redress and oversight to accompany the exercise of these powers.

The regulations to be debated today will make two necessary amendments to Schedule 4 to the IPA. The first will implement changes to the communications data authorisation process for the UK intelligence community in order to implement the findings of a High Court judgment. This judgment was handed down in June this year in the case of Liberty v Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs. I will refer to communications data as CD and the UK intelligence community as UKIC.

This amendment will remove the power for UKIC to internally authorise the acquisition of CD for purposes which relate solely to serious crime, other than in urgent circumstances. In line with the court’s judgment, from 1 January 2023, it will be necessary for UKIC to seek authorisation for acquisitions of this type through the Office for Communications Data Authorisations, which I will refer to as the OCDA. The OCDA is part of the Investigatory Powers Commissioner’s Office, and its involvement in the authorisation process will ensure that an independent body has considered all non-urgent applications for CD.

For urgent applications, UKIC needs the ability to continue to self-authorise the acquisition of CD in such circumstances, because the OCDA is open only during normal office hours and our intelligence services need to be able to acquire CD at any time of day or night in urgent situations. This statutory instrument makes the necessary change to Schedule 4 to permit such urgent acquisition. Law enforcement bodies such as police forces are able to self-authorise urgent CD requests in the same way.

If this power is not in place, there is a risk of causing delays to UKIC’s operations, potentially putting the public at increased risk of serious crime. Additionally, these regulations will amend the Schedule 4 entry for the UK National Authority for Counter-Eavesdropping, which I will refer to as UK NACE. UK NACE was added to Schedule 4 in 2020, and these regulations do not change the powers afforded to it but make its designation more consistent with the approach taken for other similar bodies which form part of relevant public authorities for the purposes of Schedule 4 to the IPA.

It is opportune to make this small change alongside the other amendments to Schedule 4 to implement the High Court judgment. Per the obligations set out in Section 72 of the IPA, appropriate consultation has taken place with UK NACE, the Foreign, Commonwealth and Development Office and the Investigatory Powers Commissioner’s Office in advance of making this change. UK NACE plays a critical role in protecting our national security from state threats and other malign actors, and it is vital that it is equipped with the appropriate powers to carry out this activity effectively.

In summary, these regulations will enable UKIC and UK NACE to continue carrying out their statutory duties effectively, while ensuring that there is appropriate oversight in place to protect privacy. I hope noble Lords will support these measures and their objectives. I commend the draft regulations to the House and beg to move.

[Lord German (LD)]

My Lords, we support these regulations, but I have a number of questions to ask the Minister and would like the whole House to reflect on the way regulations of this sort are dealt with by the House.

Early in January, there will be a debate on two reports from this House on the way in which secondary legislation is dealt with by Parliament, particularly the House of Lords. This particular set of regulations—what I am about to say has no effect on them—come under the enhanced affirmative procedure, which provides for regulations being placed in a draft form so that Parliament can assess them and then request the Government to make changes in summary. They would then bring forward amendments to it. In this set of regulations such a requirement was not in place, because the committee that looked at them, of which I am a member, did not make any recommendations about changes that might be required.

However, there are two points in respect of the way that Parliament deals with these matters. The first is that when the enhanced affirmative procedure is required, there is no specification as to which committee of this House will look at them. I will raise that matter in January, but we perhaps need to consider it. At the moment, the Secondary Legislation Scrutiny Committee looks at them, but not necessarily so: it is simply because there was nobody else. In the other place, it is “other committees” that look at this procedure, which is quite strange.

There is no question that, because there is no recommendation from the Secondary Legislation Scrutiny Committee, this procedure would have to form the amendment. It is very important that we have that opportunity to make changes to the secondary legislation; it is otherwise a take-it-or-leave-it procedure. A detailed discussion has been going on in this House about this, as we find it very strange for a Parliament to give such power to the Executive without having the opportunity to properly scrutinise and make appropriate changes.

I would like to ask the Minister some questions. First, which bit of the EU law, which resulted in the High Court’s decision, was problematic? This was a compendium case taken to the High Court, in which the Government defended themselves. This was one of several elements, and the Government were defeated on this element on the basis that they were breaching that EU law. Is the Minister satisfied that the EU law itself is appropriate and will therefore not necessarily need to be changed? It provides some fundamental rights, particularly against what people call the snoopers’ charter.

My second question concerns the operation of the OCDA. It is rather strange that the Minister and his counterpart in the other place talked about the OCDA being able to deal with these matters only during opening hours. It strikes me as being rather like a pub: you have opening hours, you have to place your order, and you cannot put anything in if the doors are closed. The question therefore arises: if you are applying to the OCDA during opening hours, how long would it take to give an answer? Clearly, the issue of understanding and defining what is urgent is very important. Having a definition that says that it is urgent only if it is closing time or they are gone would not be wholly appropriate. I understand the urgent nature of the legislation, but perhaps the Minister could describe how long the OCDA would take to provide an answer in ordinary circumstances where there is not such urgency. With those two questions, I am pleased to support these regulations. I hope that we can delve more into the process in January.

[Lord Beith (LD)]

My Lords, perhaps I might ask the Minister a couple of questions arising out of this. First, am I right in thinking that, to satisfy the court judgment, we must pass these regulations before the beginning of January? Perhaps he could clarify that. Secondly, looking in more detail at the position of the Security Service in particular in dealing with organised crime, I think I am right to say that the only change made by these regulations to satisfy the court judgment is that the urgency procedure would be able to address serious crime communications bids only if there is a matter of urgency, otherwise they would need to go through the normal process.

What slightly puzzles me about that is that I would expect the Security Service, which makes an enormous contribution in dealing with serious crime, to work in close conjunction with the police and, presumably, the National Crime Agency. Would it not be the police leading many such investigations? Would they not themselves be in a position to make the urgent request for communications data? I ask that simply for clarification, not out of any criticism of the fact that the Government have implemented the court’s decision.

Clearly, this restriction will not apply to other areas in which the intelligence agencies work. They will be able to make their own applications on their own initiative, even if it is not an urgent case, because it is within their core areas of activity. But when it comes to serious crime their responsibilities are shared with other bodies, which might be expected to take a lead on the requirement to use communications data.