Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Paddick Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Lord Paddick (LD)]

My Lords, this has been a lengthy and complex debate, and I blame the noble Lord, Lord Anderson of Ipswich, for that; we tried to split this group to make it more manageable, but his will prevailed.

As the noble and learned Lord, Lord Thomas, said, amendments in this group are on prior authorisation by a judge; by an investigatory powers commissioner; by an investigatory powers commissioner unless it is urgent; by an investigatory powers commissioner if a criminal conduct authority is to be used to identify a journalistic source; and by a Secretary of State. Another amendment requires that an investigatory powers commissioner be notified

“as soon as … practicable, and in any event within seven days”

and that the police authority be involved in holding the chief constable to account as a result of the investigatory powers commissioner’s annual report on the use of CCAs.

It is understandable that noble Lords want prior notification—and why the police should not, as the noble Baroness, Lady Kennedy of The Shaws, said, mark their own homework. On the advice of one noble Lord, I read the code of practice that goes with this Bill. I have held both ranks that could grant a criminal conduct authority under this Bill. In urgent cases, that is an inspector, who can not only grant a criminal conduct authority but also grant immunity from prosecution. I was an inspector at the age of 24. I was also, subsequently, a controller of covert human intelligence sources. I spent 18 years as a uniformed officer. On the Friday I left the office as a uniformed chief inspector and on the Monday morning I was a detective chief inspector in the role of a controller. The Government may say that all the people involved in the matters considered by this Bill will be experienced and highly trained, but that is not always the case in my experience.

We should listen very carefully to the noble Baroness, Lady Manningham-Buller, who articulated why prior authorisation is not practical, a point also made by the Minister for Security in another place and by the noble Lord, Lord Anderson of Ipswich. From my experience I agree, although the description of MI5 handlers and agents as beyond reproach is not, in my experience, universally applicable to police handlers and informants.

Any prior authorisation would instruct CHIS to operate within strict parameters, which may no longer be necessary or proportionate once they are deployed, or may not be adequate once they are deployed, because they are being deployed into rapidly changing scenarios in an uncontrolled environment, often involving chaotic individuals. The most common use of CHIS in policing, for example, is to counter drug dealing. As the noble Baroness, Lady Manningham-Buller, has said, you cannot turn an agent on and off like you can a listening device.

Even the most experienced undercover officer may have to necessarily and proportionately go beyond the strict parameters of a CCA because the situation has dramatically changed in ways unforeseen by the handler. If he were to strictly adhere precisely to a CCA, he could put himself in danger of losing his life. As we will hear in later groups, children are increasingly being used as covert human intelligence sources, some of whom have chaotic lifestyles. Sometimes they are drug users or drug dealers. To expect such people to operate within the strict and precise boundaries of a CCA in such turbulent situations is not only unfair and unreasonable but completely unrealistic. To determine the strict parameters of a CCA to cover every possible scenario, in the middle of a rapidly changing situation, and when the legal immunity of both handler and CHIS depends on it, is unfair and unreasonable to both handler and CHIS.

Those proposing prior authorisation by judges, Investigatory Powers Commissioners and government Ministers may say that any conduct outside the strict parameters of a CCA will be looked at by the prosecuting authorities and a decision made whether to prosecute using the public interest test. In that case, why can the prosecuting authorities not look at all the actions of the CHIS and the handler and decide whether to prosecute?

Amendment 46, for which there seems to be a good deal of support around the House, suggests that the Investigatory Powers Commissioner should be given notice where a person grants a criminal conduct authorisation as soon as practicable and, in any event, within seven days—but, as my noble friend Lady Hamwee and the noble and learned Lord, Lord Thomas, said, so what? What power does the Investigatory Powers Commissioner have to intervene? What happens if the handler corruptly tasks an informant to commit crime? As the authority has already been granted, both CHIS and handler have legal immunity, even if the handler informs the Investigatory Powers Commissioner six days later. A wronged party may be able to claim compensation from an Investigatory Powers Tribunal but criminal offences may have been committed for which the perpetrators should be prosecuted. That is why we have added to Amendment 46, to the effect that legal immunity is dependent on the CCA being approved by the Investigatory Powers Commissioner. If the actions of the handler or the CHIS are not within the limits set out in the Bill, neither are immune from criminal prosecution or from being sued.

I understand completely why noble Lords do not want a criminal conduct authority to be granted without prior judicial or ministerial authorisation because of the potential for abuse. However, as others have said, it is not practical. We believe there is a way to prevent abuse without prior authorisation of a CCA, including protecting journalistic sources, which we will come to in a future group. We have listened very carefully to this debate and have come up with a new amendment; because we were part way through this debate we cannot debate that amendment in this group, but we will come to it in a couple of groups’ time. What must not happen in any circumstances is the granting of legal immunity without judicial oversight. That is what our Amendment 47 attempts to do.

[Lord Rosser (Lab) [V]]

Amendments 14 and 75 in my name and the name of my noble friend Lord Kennedy of Southwark provide that authorisations may not be granted under this section until a warrant has been issued by a judge. An application to a judge must be made in writing and provide details, including the reasons why it is required, who it covers, the length of time it will be active for, and previous applications covering the same individual. Our amendments also provide that a person who grants a criminal conduct authorisation must inform the Investigatory Powers Commissioner within seven days of granting the authorisation. We seek to strengthen both prior and post-authorisation oversight.

Amendment 77 in the name of my noble friends Lady Clark of Kilwinning and Lady Whitaker and the noble Baroness, Lady Jones of Moulsecoomb, calls for prior judicial approval before an authorisation can be granted

“for the purposes of identifying or confirming a source of journalistic information”,

and is in line with our amendment providing that authorisations may not be granted until a warrant has been issued by a judge. Amendment 46 in the names of the noble Lords, Lord Anderson of Ipswich, Lord Butler of Brockwell, Lord Carlile of Berriew, and the noble Baroness, Lady Manningham-Buller, is very similar to our Amendment 75 requiring a person who grants a criminal conduct authorisation to inform the Investigatory Powers Commissioner within seven days of granting the authorisation. However, all the amendments we have been discussing in this group reflect a strong feeling that the oversight arrangements set out in the Bill for the statutory power by public authorities to grant criminal conduct authorisations are inadequate and do not provide reassurance that the likelihood of this power being misused or exceeded is reduced to a minimum.

What exactly has been happening under the present arrangements is far from clear, although we are assured that they have enabled threatened terrorist atrocities and other serious crimes to be thwarted and our safety to be secured. We have no reason at all to doubt that. However, we do not know the extent to which powers have or have not been misused or exceeded since there is no means of that information consistently coming to light. Without proper oversight to act as a firm check there is a risk that some may become somewhat overzealous in how they exercise and interpret the powers they are given under the Bill, including what might be regarded as acceptable covert human intelligence activity, and against what and whom.

We believe there should be prior judicial authorisation, with authorisations not being granted until a warrant has been issued by a judge. Having to obtain a warrant before action can be taken is nothing new. Bearing in mind the potential gravity of the decision to authorise criminal conduct, the necessity to obtain a warrant beforehand seems even greater than it is in relation to other existing actions or activities requiring a warrant at present. It is a prior safeguard and check to minimise the likelihood, in what is self-authorisation by an agency or other body, of a potentially ill-judged or just plain wrong authorisation of criminal conduct, with all the consequences that might have.

Objections have been raised that sometimes authorisations are needed in a hurry but equally, access to a judge, as happens in some other spheres, can be arranged in a hurry—a point made by my noble friend Lady Kennedy of The Shaws. Urgency can arise because of a rapidly developing situation that could not have reasonably been foreseen, but it can also arise because a public authority has left things later than it should have done before seeking the criminal conduct authorisation. Perhaps the Government can, in their response, give some indication of roughly how many such authorisations are currently granted on average each year, how many are needed urgently and what the definition is of urgently. Can the Government also give a general indication of the extent to which authority to commit criminal conduct is given, in a typical year, to those who have been previously involved in or who are currently engaged in unauthorised—[Inaudible]—said that all authorisations

“are granted by an experienced and highly trained authorising officer, who will ensure that the authorisation has strict parameters and is clearly communicated to the”,—[Official Report, 11/11/20; col. 1045.]

covert human intelligence source. The phrase “experienced and highly trained” sounds fine, but what do the Government intend it to mean in practice in relation to the granting of criminal conduct authorisations under the Bill? What is the definition of an

“experienced and highly trained authorising officer”,

a description the Government were happy to use at Second Reading? How much experience is meant, and in what? How much training is meant, and in what? How many experienced and highly trained authorising officers will there be in each authority that will have the power to grant criminal conduct authorisations, and how frequently are they likely to determine whether to grant such authorisations?

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I am very happy either to write to the noble Baroness and outline what I said in more detail or meet with her before Report.

[Lord Paddick (LD)]

My Lords, I thank the Minister for what she has said. I accept what she and the noble Baroness, Lady Manningham-Buller, said about it being a senior officer. In urgent cases, however, the police officer who actually grants the criminal conduct authority would be only at inspector level, which is not very senior. Criminal or civil liability would probably rest with the handler because the handler is the one who made the request to the senior officer—but I am glad that that has been clarified.

The Minister dismissed our Amendment 47 on the basis that it looked like prior judicial approval. It is not prior judicial approval at all and it deserves to be looked at. The Minister said that retrospective oversight is the best solution, but once a criminal conduct authority has been granted, so has legal immunity. So what if the CHIS has been corruptly tasked to commit a crime and commits a crime that should not have been committed? With only retrospective oversight, that CHIS and that handler are still immune from prosecution. How can that be right?

[Baroness Williams of Trafford (Con)]

If I understand the point from the noble Lord, Lord Paddick, that the CHIS is authorised to commit something that is later deemed unlawful, my understanding of it—I will stand corrected if officials tell me differently—is that the person who authorised the unlawful conduct would themselves be liable for the deployment of the CHIS. Clearly, what the CHIS did would also be looked into post facto, but the person who authorised the deployment would be liable for that conduct in the deployment, I think.

Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020

Lord Paddick Excerpts

Thursday 26th November 2020 Lords Chamber

[Lord Paddick (LD) [V]]

My Lords, I thank the Minister for introducing these regulations.

The stream of worrying statutory instruments dealing with our final severing of links with the EU at the end of the transition period continues. We have already debated regulations that will weaken UK border security; now, we have regulations that deal with the end of co-operation with the EU on a whole range of criminal law, investigatory powers, policing and criminal justice issues. When a similar raft of regulations, which these regulations amend, was debated, the Secondary Legislation Scrutiny Committee, as it put it,

“published a critical report because the 2019 Regulations bundled together a large number of topics without adequate information on any of them.”

Here we are again, with one SI containing 50 regulations relating to a wide range of law enforcement and security issues.

The regulations cover extremely important issues, such as cross-border surveillance, extradition, the exchange of information and intelligence, Eurojust and Europol, and security databases such as the Schengen Information System—SIS II—and the European Criminal Records Information System, or ECRIS.

The Minister explained the purposes of these regulations and the noble Lord, Lord Bhatia, repeated them so I see no point in repeating them again. However, I share the concerns expressed by many other noble Lords this afternoon. It is 36 days until the end of the transition period. Let me remind the House what these regulations are about. At the moment, there are arrangements in place to allow law enforcement and security services to follow dangerous criminals, including terrorists, across borders. So if the National Crime Agency has undercover officers following a gang involved in people smuggling, for example, they can pursue them across the channel and across the EU. As things stand, that ability will end on 31 December.

At the moment, rapid extradition from the EU to the UK, including of a country’s own nationals, can be achieved using the European arrest warrant. As things stand, that will end on 31 December.

At the moment, information and intelligence can be shared between law enforcement authorities in the UK and those in the EU. This includes the Prüm database, which allows rapid electronic matching of fingerprints and DNA samples found at any crime scene in the UK with those in databases of criminals held across the EU. As things stand, we will no longer have access to these databases come 31 December.

At the moment, the SIS II database is in place, which triggers an alert when someone travelling across an EU border is wanted or of interest to the police or security services. It also provides information about what action border security officials should take. As things stand, we will lose access to that database from 1 January.

At the moment, Eurojust co-ordinates investigations and prosecutions involving more than one country by helping to resolve conflicts of jurisdiction, for example. As things stand, we will no longer be a member of Eurojust on 1 January.

Finally, Europol co-ordinates law enforcement activity across the EU to deal with serious and organised crime, such as drug and people trafficking, terrorism and cybercrime. Crucially, it produces threat assessments in these areas, which pose the most serious criminal threats to the EU and the UK. These are used to prioritise law enforcement activity. As things stand, the UK will go from being one of the agenda-setting countries in Europol to having observer status. I say, “as things stand”, but we have only 35 days to prevent these things.

Can the Minister give us a detailed account of which, if any, of these measures, which are vital to the security of the UK, are likely to still be in place on 1 January? Let me help her a little. The BBC reported last week that the UK wanted to maintain the same access to Prüm, SIS II and the other EU databases that are vital to our security, but that the EU says that those are not on offer to non-EU members. We know from the experience of Norway and Iceland that non-EU members cannot be part of the European arrest warrant, and the second-class alternative they have does not allow extradition of a country’s own nationals. Even that took over a decade to negotiate and come into force. So can the Minister confirm that whatever security treaty the UK is able to negotiate with the EU will not include access to EU databases or the European arrest warrant?

Metropolitan Police Assistant Commissioner Neil Basu, Britain’s top counterterrorism officer, told the BBC last week that the UK will be less safe without an EU security deal in place. Is it not the case that the UK will be less safe whatever security deal is agreed, or if no security deal is agreed, as it will not include access to EU databases and the European arrest warrant? I am sure these regulations—all 50 of them—are necessary, but they provide a stark reminder of what we are losing as a result of leaving the European Union.

Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020

Lord Paddick Excerpts

Wednesday 18th November 2020 Grand Committee

[Lord Paddick (LD) [V]]

My Lords, I thank the Minister for introducing this draft order. Its main purpose is, to quote from the Explanatory Memorandum that accompanies it, to

“ensure that the UK can continue to utilise electronic passport gates (e-Gates), a secure and efficient mechanism for travellers to cross the border, to process the arrival of citizens of current EU and EEA member states and Switzerland entering the UK as visitors after the end of the transition period”.

I want to draw the Committee’s attention to the hypocrisy of a Government who campaigned to leave the European Union on the back of the slogan “Taking Back Control”—a phrase that they continue to use to this day, particularly in relation to our borders. The only way this order can be described as taking back control of our borders is that the decision to keep them open with the same level of control, or lack of it, as when we were members of the EU is going to be taken by the UK Government, rather than that decision being a consequence of being a member of the European Union.

What is more, in a vain attempt to avoid being accused of hypocrisy in the face of their promise not to treat EU citizens more favourably than those from outside the EU, the Government have weakened the UK border in relation to citizens of the B5JSSK countries—Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA—by allowing citizens from those countries to use e-gates. Not only are the Government not taking back control of their borders; they admit in their own documentation that e-gates are not secure, or at least do not deliver an acceptable level of security. Let me explain. The Explanatory Memorandum goes on to say that, with the end of free movement, EEA citizens will require leave to enter and remain in the UK

“but those coming as visitors will be able, like other non-visa nationals, to obtain leave to enter at the border for six months”

and that this instrument will

“allow EEA citizen visitors to obtain leave by going through an e-Gate. This leave will be granted for six months in the same way as it is granted to … B5JSSK nationals … who have been able to obtain leave”

by entering through the e-gate since 2019. I think the Minister explained that this happened in May 2019.

Cynics will accuse the Government of extending e-gate access to B5JSSK nationals, which was done only last year, only to avoid being accused of treating EU citizens more favourably after Brexit. The Government have previously said that the decision was made to “better manage the queues” at the UK border, but the point of the border is to keep undesirable people out of the UK—not to make it easier for everyone, including undesirable people, to pass through it. Until the changes were made, B5JSSK nationals had to hand a boarding card to a Border Force officer at the UK border, explain the purpose of their visit and how long they were staying, and prove that they had somewhere to stay and sufficient funds to sustain them during their time in the UK. I am told—the Minister will correct me if I am wrong—that approximately 3,000 USA nationals were turned away at the border annually when these checks were in place. Now there are no checks.

In the chapter entitled “The border of the future” in the Government’s published plans for a points-based immigration system, they outline an idea for “Electronic Travel Authorisations” to be introduced at some unspecified time in the future. The Government claim that these

“will allow security checks to be conducted and more informed decisions taken on information obtained at an earlier stage, as to whether individuals should be allowed to travel to the UK.”

Presumably, these checks and “more informed decisions” will be similar to the checks and informed decisions that Border Force officers used to undertake at the UK border, resulting in 3,000 American citizens a year not being allowed to enter the UK, and before the B5JSSK citizens were allowed to use e-gates. But what happens to UK border security in the meantime? Are the Government now saying that we will take back control of our border eventually?

Continued access to EU databases is also in doubt, particularly the electronic system that allows UK authorities to check whether an EU citizen has been convicted of a criminal offence in any EU country. Not only will allowing EU citizens to use e-gates not be taking back control of our borders; we are less likely to be able to identify criminals entering the UK.

The Government have published advice for UK citizens seeking to visit the EU next year. It states that UK citizens must have at least six months left on their passport, show an onward or return ticket, have enough money for their stay, use separate lanes from EU, EEA and Swiss nationals, and be limited to visits of 90 days in any 180 days. Meanwhile, EU, EEA and Swiss nationals visiting the UK will continue to use the e-gates and be able to stay for six months, take a day trip to Lille on the Eurostar and come back for another six months—not that there will be any way in which to check whether they have overstayed their six-month leave to remain.

Only the EU is taking back control of its borders. This Government are significantly, albeit voluntarily, giving up control of the UK border, thereby making it easier for criminals and those who want to stay in the UK illegally to enter and remain. To use an often-used government phrase, that is not what the British people voted for. I may table a Motion of Regret when this order comes before the House for approval.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Paddick Excerpts

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

[Lord Paddick (LD) [V]]

My Lords, I too welcome the noble and learned Lord to this House and congratulate him on his maiden speech and appointment as Advocate-General for Scotland. If noble Lords think that he has been put into bat a little early, I can reassure him that I made my maiden speech the day after my introduction; needs must when the devil drives.

First, I should perhaps explain my experience on these issues. When I was in the police, we used to call most covert human intelligence sources “informants”, who were mainly criminals recruited and run by “handlers”. The way in which handlers used, rewarded and authorised informants to participate in crime was controlled by “controllers”. I used to be a controller. I also had the enormous privilege of visiting MI6 and GCHQ to be briefed on the work of all the security services as part of this House’s consideration of the then Investigatory Powers Bill, including examples of who their CHIS were and how they were recruited and used.

Secondly, I came to my own conclusions about this Bill, having read the Investigatory Powers Tribunal judgment dated 20 December 2019 that prompted it. I am grateful for the briefings from Justice, Reprieve and the NUJ, among others, some of which I agree with and other aspects I do not.

There are two fundamental issues in the Bill on which the Government have, to date, not been as clear as they could be. The first is that it is not just about one issue, and it certainly does not simply maintain the status quo, as the Government have suggested. The reason for the Bill is to give absolute legal clarity that handlers can authorise their covert human intelligence sources to participate in crime. They have been doing that with little difficulty for decades but the Investigatory Powers Tribunal’s split decision called into question whether there was any legal authority for the police and the security services to authorise CHIS to commit crime. If providing that legal authority was all that the Bill did, it would maintain the status quo and I would have no argument with it.

Of course there are peripheral issues that the Bill provides an opportunity for us to address, but on providing legal authority for participating informants, as we used to call them, or criminal conduct authorities as they are now called, there is no argument and I will support the Bill in that respect.

The Bill, however, goes much further—unacceptably far—and makes everything that the covert human intelligence source is authorised to do by the criminal conduct authority “lawful for all purposes”, including immunity from civil liability, and including any conduct that is incidental to what CHIS are authorised to do. For example, had the Bill been in force at the time, the undercover police officer who was authorised to form a relationship with an environmental activist could have argued that sleeping with her was “incidental to” what he had been authorised to do, and that he therefore could not be sued.

The status quo is the following: the Crown Prosecution Service examines what happens in such cases after the event, and independently decides whether a crime has been committed, whether there is a 51% or more chance of conviction, and whether prosecution is in the public interest. Rarely—the Government’s position is never—does the Director of Public Prosecutions grant immunity to a CHIS prior to the event. To date, the status quo has rarely, if ever, caused any problems. It has been put to me that the status quo does cause problems, in that sometimes, when a handler asks an informant to participate in crime, the criminal concerned backs away because they want a promise of immunity in writing, and the handler cannot give it. We need to examine carefully and in detail whether such a cast-iron guarantee is necessary or desirable.

This Bill as drafted would allow a police officer or member of the security services, with no independent judicial oversight, to grant total immunity to a criminal to participate in an armed robbery, for example. Rarely, if ever, would immunity not be given prior to the CHIS being asked to participate in crime—a complete reversal of the status quo. At the moment, the CPS almost always decides that it is not in the public interest to prosecute in such cases, but the Bill makes anything done in accordance with a criminal conduct authority not a crime. What is in law a criminal act becomes a lawful act for the person authorised that would no longer rest on the public interest test. This is not preserving the status quo by any stretch of the imagination.

The Government will tell us that that is akin to granting immunity to those involved in the interception of communications and, indeed, immunity is to be provided by the same section of the same Act that makes properly authorised communications interception “legal for all purposes”. However, interception of communications has to be authorised by a Minister of State in advance, having already been approved by an Investigatory Powers Commissioner against someone suspected of the most serious criminality.

However, under this Act, authorising a criminal to take part in an armed robbery, in which innocent people could be seriously injured, will not be done in advance by anyone outside the police. Even officials in the Home Office, potentially on instruction from government Ministers, could otherwise grant immunity to someone to commit crime, with no prior judicial oversight and little post-event scrutiny. Is that what we want?

The second major issue about which the Government have not been clear is who these covert human intelligence sources are. In their briefings, the Government have placed the emphasis on CHIS being undercover police officers or officers of the security services working undercover. The majority of covert human intelligence sources are criminals, members of terrorist organisations and drug gangs, or those inside other organisations that the police or security services have a legitimate interest in. This legislation, as drafted, will predominantly protect criminals, not undercover cops.

Other safeguards are needed, such as to prevent CHIS from acting as agent provocateurs and to protect child CHIS. We must carefully scrutinise which authorities can grant immunity. Other matters, considered in the other place and recommended by NGOs, such as prior authorisation and limitations on what crimes can be authorised, would be necessary only if the immunity provision remains part of the Bill. It should not remain part of the Bill. This is not a party-political issue; this is a rule of law issue. We have a lot of work to do.

UK Terrorism Threat Level

Lord Paddick Excerpts

Tuesday 10th November 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

We extend our condolences to the families of the victims of the recent horrific attacks in France and Austria and our sympathy and hopes for a recovery to those who were injured. It is these attacks that have prompted the decision by the Joint Terrorism Analysis Centre to raise the threat level for terrorism to “severe”—the second highest level—indicating an attack is highly likely. This is a decision we support since we have a shared responsibility to keep this country, our people and our communities safe. We extend our appreciation to our security services and those involved in counterterrorism policing for the vital work they do to keep us safe.

Could the Minister say what impact raising the threat level from substantial to severe will have as far as the daily lives of our citizens are concerned, both while we are in lockdown and when we come out of lockdown? Does the raising of the threat level require greater use of resources by our security services and counterterrorism policing? If so, were those additional resources already available or have they now been made available? Does the raising of the threat level apply across the United Kingdom? Is there uniformity of approach and practice across the United Kingdom in moving to the higher threat level? If not, what are the differences and where? Where do we now stand in relation to the independent review of the Prevent strategy? The raising of the threat level makes this more not less important.

The raising of the threat level from international terrorism reminds us of the importance of international co-operation. Do the Government accept that agreements must be concluded to ensure continued co-operation with the EU in combating terrorism after the end of the transition period?

In the Commons last week, the Minister said that he and the Home Secretary had

“asked officials to review with partners existing and proposed powers in the light of the horrific attacks in France and Austria to consider what more, if anything, might be needed.”—[Official Report, Commons, 5/11/20; col. 529.]

When is that review likely to be completed? I would like to know what kind of things come under the description of

“what more, if anything, might be needed.”—[Official Report, Commons, 5/11/20; col. 529.]

I conclude by reiterating our support for the decision to raise the threat level, and stress the need for our citizens to remain vigilant and steadfast. Combating terrorism and international terrorism is not, as some would like to suggest, a fight between different faiths, or people of different faiths. Our enemies are terrorists. It is a fight, as the Austrian chancellor said, “between civilisation and barbarity”.

[Lord Paddick (LD) [V]]

My Lords, I want to start by paying tribute to Lords Sacks—Rabbi Jonathan Sacks. He may no longer be able to speak to us directly, but what he said lives on. In 2013, he wrote an article for the Spectator entitled “Atheism has failed. Only religion can defeat the new barbarians”—by whom he meant those who threaten western freedom by religious fundamentalism, combining hatred of the other, the pursuit of power and contempt for human rights. He was in effect saying that moderate religion is the answer to religious fundamentalism, not anti-religious campaigning.

There is no justification for violence. The horrific terrorist attacks we have seen on mainland Europe and here in the UK in recent years I condemn unequivocally. My thoughts are with all those affected.

Can the Minister set out the UK Government’s position on free speech? Is free speech to be at any cost, no matter what the impacts on others? Because we condemn violence, no matter that it is unjustified, that does not mean we should not try to understand why people are drawn into it. Terrorism cannot be condoned under any circumstances, but if we are to counter it effectively we need to understand what motivates it. To that end, can the Minster say what research has been conducted into the impact of lockdown on the spread of extremism, particularly using the internet? What is the likely impact on vulnerable individuals—with no moderating interaction from others—and on their mental health? What are the Government doing to encourage, promote and ensure access to a moderate religious counternarrative to violent extremism allegedly based on religion?

The Home Secretary’s Statement talks about the increased threat level being used by the police to determine the level of their overall protective security activity. This includes additional police officers deployed to “certain places”. Can the Minister explain which places or what type of places these additional police officers are being deployed to?

The police are already stretched because of the Covid pandemic. It is at times like these that the importance of resilience in the police service is brought into sharp focus. Not only are the police having to enforce lockdown restrictions, police demonstrations against Covid regulations and deal with an enhanced UK threat level; they also have to do the day job of fighting crime and responding to calls for assistance. Many of these calls have nothing to do with crime, and include having to help increasing numbers in mental health crisis. This Government continued to reduce police numbers long after police leaders told them the cuts had gone far enough. Can the Minister explain where the additional police officers the Home Secretary refers to in her Statement will come from?

No doubt the Minister will be keen to tell the House about the additional police officers currently being recruited and the progress towards the government target of recruiting an additional 20,000 police officers, but can the Minister say what is the net increase, if any, in the number of police officers has been since the initiative was announced? What is the total number of police officers now compared with the 143,800 full-time equivalent officers in England and Wales police forces in 2010?

An essential part of combating terrorism, particularly the forms of terrorism we have seen in recent years, is community intelligence, intelligence built on trust and confidence created by police community support officers and local community police officers. What is the current number of police community support officers compared with 2010, and what proportion of police officers are currently employed as local community officers?

I have the utmost respect for our police and security services, and I am confident they do all that they possibly can to counter terrorism within the resource restraints they have been forced to operate under. I pay tribute to their skill and dedication. It is not, as the Home Secretary maintains, just about passing legislation. It is about properly resourcing the police and security services to give them the resilience they need to be able to respond to crises such as these.

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

My Lords, I thank both noble Lords for their comments and questions. I join them in expressing solidarity with France and Vienna in the tough times they have had, as well our sympathies with the families affected. I echo the noble Lord, Lord Paddick, in paying tribute to Rabbi Sacks, who was a great asset to this House and who always spoke with such wisdom on these matters.

The noble Lord, Lord Rosser, asked how the raised threat level would affect daily life. This matter is under continuous operational review by JTAC. Deployments of police in certain areas of our daily lives will be changed according to threats. In terms of the resources needed, my predecessor—way back when—the right honourable Sajid Javid recognised the changing demand on the police. Under his successor, my right honourable friend the Home Secretary, the 20,000 police officer uplift was made; it was, in fact, a manifesto commitment. I understand that we are almost at the 6,000 level. The noble Lord, Lord Paddick, asked about the number of PCSOs. I do not know exactly how many we have in this country. That is a matter for local forces and chief constables, in collaboration with their PCCs. The number is decided according to the needs of the local area. However, I will try and get that number, if it is available. He asked for some other details, which I shall also try to get for him.

Both noble Lords asked where the additional resources would come from when the threat level went up. Deployment will be a matter for operational decision. Of course we recognise that additional police demand is there. Both noble Lords mentioned crisis. Police grant can be applied for and, no matter what it is for, it will be given if the case is made.

The noble Lord, Lord Rosser, asked if the threat was UK-wide. Yes, it is. There is separate consideration for Northern Ireland in relation to threats within it. He asked about the Prevent review. We are in the final stages of interviewing for our independent reviewer of Prevent and it is anticipated that the review will be done promptly. I deliberately did not give a timescale because we did not want to be where were last time, with the noble Lord, Lord Carlile, having to step away. We did not want to create too much time pressure.

The noble Lord, Lord Rosser, also talked about international co-operation and what more we can do. He and the noble Lord, Lord Paddick, will know that, particularly in relation to the EU, we remain absolutely committed to that co-operation on law enforcement.

The noble Lord, Lord Paddick, outlined the necessity for free speech but with limits, of course. If it impinges on the threat to the individual, it crosses the line. He talked about terrorist and extremists’ use of the internet. I could not agree with him more. I hope that the online harms White Paper will become a Bill very soon and deal with some of those issues, particularly the duty on internet providers to their users. He also asked which places had benefited from protective security. He will know that I cannot talk about that, for the benefit of those places. He mentioned the police having to do their day job and police numbers. I hope that I went through that in sufficient detail but I will top it up with additional information for him.

Covid-19: Christmas Breaches of Restrictions

Lord Paddick Excerpts

Tuesday 3rd November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I can confirm that the Home Office has provided additional surge funding. I agree with the other points he made, certainly regarding the guidance. The pattern of the virus changes, going up exponentially and falling; we must respond to what it is doing at the time.

[Lord Paddick (LD)]

My Lords, we have seen from the scenes of people partying in the streets of Nottingham last week, and outings to Barnard Castle, that just because something is illegal does not stop people from doing it if there is a desire to do so and a reasonable prospect of getting away with it. When will the Government stop relying on unenforceable laws and start putting their energy into educating people, explaining to them that socialising at home with people from different households is potentially putting their friends and loved ones’ lives at risk?

[Baroness Williams of Trafford (Con)]

The noble Lord makes a good point. There were 20,223 fixed penalty notices in England and Wales between the end of March and the middle of October. The most important point that the noble Lord makes is that individual responsibility will be crucial to tackling the virus. Like him, I have seen irresponsible behaviour, and while the healthy ones among us will be okay as a result of it, our grannies and those who are medically vulnerable may not be.

Project for the Registration of Children as British Citizens v Home Office

Lord Paddick Excerpts

Monday 19th October 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Baroness will forgive me if I do not talk about the case in point, because there is ongoing litigation. We will look at the judgment with interest and see what is to be done from there.

[Lord Paddick (LD)]

My Lords, can the Minister explain why the Government want the immigration system to be self-funding in a way that no other government department is? Controlling immigration is of benefit to all citizens and should therefore be paid for by all citizens.

[Baroness Williams of Trafford (Con)]

The whole rationale behind the fee is to pay for the costs of the border, and not everyone goes through the border. I take the noble Lord’s point, of course, that maintaining a strong border is a cost to everyone.

Extradition (Provisional Arrest) Bill [HL]

Lord Paddick Excerpts

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

[Lord Paddick (LD)]

My Lords, I shall first acknowledge that the noble Baroness the Minister has a script that she is obliged to follow. As the Minister has said in her introduction, this Bill gives the police the power to arrest somebody who is wanted in another country, without the need to apply to a court for a domestic warrant before the arrest can be made, provided that it is a trusted country and the National Crime Agency has verified that the foreign request to make the arrest is necessary and proportionate.

Throughout the passage of this Bill, the Minister has maintained that it is not a replacement for the European arrest warrant, and I agree—but only to the extent that the Bill does not change the extradition process once the accused is before a court. This power to arrest those wanted by a foreign country without a domestic warrant is, of course, part of the European arrest warrant regime. If someone is wanted under an EAW, they could be arrested by the police in the UK without a domestic warrant. Despite what the Minister has said, there is every indication that the UK will no longer be part of the European arrest warrant at the end of the transition period, not least because the constitutions of some countries, such as Germany, do not allow their own nationals to be extradited to a non-EU country. The noble Baroness prayed in aid the EU agreement with Norway and Iceland, but that agreement took more than a decade to agree and implement, and it excludes the extradition of a country’s own nationals.

We were suspicious that this Bill was a replacement, or at least a partial replacement, for the European arrest warrant—and, indeed, we were at a loss if it was not. At Second Reading, the noble Lord, Lord Anderson of Ipswich, asked:

“Could the Minister explain why the existing powers of urgent arrest under Sections 73 and 74 of the Extradition Act 2003, before an extradition request has been submitted or certified, are not considered sufficient? ... My understanding is that a request from the issuing state for the accused’s provisional arrest can already be the subject of a provisional warrant application by the CPS to the court—an application which, in urgent cases, can be made out of hours to the relevant duty judge, if necessary by email.”—[Official Report, 4/2/20; col. 1735.]


This sounds to me like a process that could be quicker than the one proposed by this Bill, where the NCA has to certify the request to make an arrest.

Also at Second Reading the Minister said:

“Several noble Lords have voiced concerns that this Bill is an attempt by the Government to replicate the capability of the EAW. As I hope I have explained, this is not the case.”—[Official Report, 4/2/20; col. 1757.]


This prompted the noble Baroness, Lady Jones of Moulsecoomb, to ask:

“If it is not a replacement for the European arrest warrant, can the Minister confirm that the Government will not add the list of EU countries to the list we have already?”


The Minister replied:

“I said that it is not a replacement for the EAW, but of course the Government can make that request of Parliament.”—[Official Report, 4/2/20; col. 1760.]


And lo and behold, government Amendment 5 adds the list of EU countries, plus Norway and Iceland, which have their own versions of the European arrest warrant, to the list we already have.

Perhaps the noble Minister will now accept that, if the Bill is not a complete replacement for the EAW, it is at least a partial replacement for the EAW, in that it restores arrests without warrant in the UK for those wanted by EU countries—a power that will be lost, along with the rest of the European arrest warrant regime, at the end of the transition period.

As the noble Lord, Lord Anderson of Ipswich, just said, in effect, the fact remains that, even with the Bill, extradition of EU nationals will take longer and be more complex than under the European arrest warrant regime. There is no obligation on EU countries to reciprocate—that is, to immediately arrest and quickly extradite those wanted by the UK who are in EU countries —because the Bill is a partial but wholly inadequate replacement for the European arrest warrant. Perhaps this explains the Government’s sheepishness in trying to put distance between it and the EAW.

It is clear that we will all be less safe in the UK at the end of the transition period, when we lose access to the European arrest warrant, as a consequence of leaving the European Union. We do not oppose the government amendments in this group, but it would have been better if the Government had been more transparent from the outset.

Immigration Skills Charge (Amendment) Regulations 2020

Lord Paddick Excerpts

Wednesday 7th October 2020 Lords Chamber

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining these regulations, although I am not entirely clear about them. She said that they are about the immigration skills charge and underinvestment by business in skills training, but then said that the money paid does not go into skills training, which I found a little confusing. The charge applies at a rate of £1,000 per migrant per year for big businesses, with reduced amounts for small companies and charities.

I presume that the regulations are necessary to bring the existing immigration skills charge in line with the new points-based system to be introduced from 1 January. If I understood the Minister correctly, that EU migrants from 1 January will have to pay the immigration skills charge is being dealt with under separate legislation and not under these regulations.

I am also a little confused by the Explanatory Note, however brief, which says:

“Regulation 3 adds exemptions to the requirement to pay the charge.”


That is clergy, sports players, sports coaches, instructors and officials. My understanding was that these people were exempt already, so I do not understand what “adds exemptions” means if they were already included.

I have a lot of sympathy with the question asked by the noble Baroness, Lady Wheatcroft: why sport? I understand that the guidance available on Home Office websites may not be up to date, but for a sportsperson to be exempt, they need to be

“internationally established as a player or coach at the highest level.”

That indicates that the sort of people we are talking about will be those who earn a considerable amount of money. I understand that sport covers from grass roots up to international level, but these will be internationally established people on extremely high salaries, so why are they exempt? I understand that it might be argued that the sort of skills training that sportspeople get is not impacted, but surely, as she explained, this money goes into some central pot to assist with skills training generally. Can the Minister explain why internationally established players or coaches at the highest level are exempt from the immigration skills charge?

We have discussed only in the past week or so in the House the issue of immigration, the job market and the resident market test in terms of encouraging employers to employ UK workers rather than foreign workers, so I have some sympathy with the noble Lord, Lord Lucas. He asked whether £1,000 was really enough to encourage employers to employ UK staff rather than people who are migrants, particularly as the resident market test is being done away with.

I can understand clergy being exempt from the charge, because one does not normally expect clergy to be paid an extraordinary amount of money. It therefore does rather concern me that the guidance in relation to clergy states that, once you have been sponsored for three or six years, you cannot return to the UK under level 2 within the next 12 months unless

“the salary for the job that the Certificate of Sponsorship Checking Service shows you are being sponsored to do (including any allowances listed as acceptable for this purpose in paragraph 79 of Appendix A to the Immigration Rules) is £159,600 or higher.”

I think—although I do not know—that it would be unusual for members of the clergy, who I understand include monks and nuns, to be paid this salary or higher, or that the sort of accommodation with which they are provided, which can be included, would run to that sort of cost. So, all in all, this is very confusing.

However, if these regulations do not add these other people as exemptions because they are already exempt, and if their purpose is simply to align with the new points-based system from 1 January, I am content.

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

Lord Paddick Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

I have a certain sympathy with the case made by the noble Lord, Lord Alton, who referred to his late mother coming from the west of Ireland. In my case, my late aunt came from the Republic of Ireland to work in Plymouth. She had no particular qualifications, but she felt more at ease whenever she had her identity card and that necessary permit. It may be a difference of some 70 or 80 years, but I think the principle remains that people feel happier when they have access to proof of identity, by which I mean a biometric card or a document. For that reason, I urge support, and I am glad to see that the noble Lord, Lord Oates, will be moving this to a vote, which I will be very happy to support, because of the level of support in the wider community in the UK and because it is eminently sensible to underpin the settled status of our EU friends.

[Lord Paddick (LD)]

My Lords, I support my noble friend’s amendment and the powerful, eloquent arguments he put forward, honed by the noble Lord, Lord Polak, and the compelling arguments of the noble Baroness, Lady Bull, and supported by every other speaker so far in this debate.

I hate to bore the House by repeating what I have said before about those entering the United Kingdom to visit, without a visa, who want to rent a property for the six months they will be here. The Government say that these people—and from 1 January they will be EEA and Swiss nationals—have to produce to the landlord physical proof of their nationality and the fact that they entered the United Kingdom within the last six months.

It has been confirmed to me by the Minister that there are no plans to have any digital proof of the status of those EEA and Swiss nationals visiting for six months that a landlord would be able to access to confirm that they can rent the property. So, we have a situation where, if an EEA or Swiss national, after 1 January, wants to rent a property for more than six months, they need a digital-only proof that it is possible, but if the EEA national has entered the United Kingdom within the last six months, it is solely physical proof that the landlord needs. There are no plans to change that process in the future. So, any argument that the Government are moving to a wholly digital system in the future is not true, certainly in relation to the circumstances I have outlined, which, therefore, knocks away a major argument of the Government’s against this amendment.

[Baroness Masham of Ilton (CB) [V]]

My Lords, over the years, I have often received pleas for help to support various campaigns. But over the last few days, like other noble Lords, I have been inundated with a multitude of emails—over 80—asking for support with changing a digital-only immigration status to one that has hard copies as well. I support Amendment 18. A digital-only immigration status will create new barriers for EU citizens, especially the elderly and the most vulnerable, who may not have the necessary skills and equipment. They need alternative ways of accessing services. This is not a fair way to treat our friends and neighbours.

EU citizens can prove their new immigration status only through the Home Office website. What happens when the website fails? Websites do fail. There should always be a back-up. Does the Minister agree? What happened on Wednesday and today are an example. Is that not a sign that this amendment should be accepted? In addition, if any one part of the digital checking process fails, people without a physical form of back-up will be vulnerable.

There should not be a two-tier system for proving the right to stay in the UK. There should be an acceptable system for all citizens in the UK and in the EU. I have a god-daughter living in France who is married to a Frenchman. This Bill is inhuman. Many EU citizens living in the UK own property, having paid their taxes. They have acquired settled status, but without physical proof of their identity they are really concerned. The letter they received states clearly that it is not proof of their identity. If they do not have hard proof, they feel very vulnerable. They need physical proof of who they are and of what rights they have earned. I congratulate and thank the noble Lords who have tabled Amendment 18, which I support.

--- Later in debate ---

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Lords, Lord Naseby and Lord Blunkett, have withdrawn, so I call the noble Lord, Lord Paddick.

[Lord Paddick (LD)]

My Lords, we support this amendment. As other noble Lords said, this will have a damaging impact on the English-language teaching sector and associated businesses such as coach operators and accommodation providers, as my noble friend Lady Garden of Frognal said. That is because these students will be going to Ireland, Malta and Cyprus—other English-speaking countries—rather than coming here, because they can still use their ID cards in those other countries.

As the noble Baroness, Lady Prashar, said, 90% of those on short language trips to the UK travel on ID cards, and it will disadvantage young people from poorer backgrounds who cannot afford a passport. Much English language teaching is based in coastal and rural communities, so the Government’s levelling-up agenda will be damaged, as will exchange trips, disadvantaging UK students, because the foreign students will not be able to come here, therefore the UK students will not be able to go on exchange visits to European countries. For those reasons, we support the amendment.

[Lord Rosser (Lab)]

Amendment 19 provides that from the beginning of next year, the Secretary of State must permit children from EEA states and Switzerland to continue to use their national ID card to enter the UK, rather than needing a passport. They would be permitted to do this once a year, for a short-term stay of up to 30 days. The amendment appears, from what has been said, to be intended to address important issues about accessing and retaining educational opportunities and exchanges for what should be both UK and EU young people, and ensuring that those existing opportunities are not compromised, made more difficult or significantly more costly to access at the end of the transition period.

What conversations has the Home Secretary already had with the Education Secretary on the concerns that have been expressed in this debate about the impact on educational opportunities for children, following the end of the transition period, as a result of changes in the immigration arrangements? What changes will need to be made for school travel in both directions to ensure that arrangements no less comparable in terms of cost, speed of process and efficiency continue after the end of this year as regards schools, the children involved and our border personnel?

It has been made clear in this debate that the English language learning sector has concerns about the impact on English language education of changes to the immigration rules. What dialogue have the Government had with this sector on these concerns, which it clearly regards as striking at the very heart of its existence?

The amendment is not specifically linked to travel for educational purposes, but would give a blanket right for all minors from EEA states and Switzerland to enter the UK using an ID card once a year. It is thus considerably wider in its terms than its stated purpose and we would not be able to give it our support if it were taken to a vote; it is not clear whether the mover intends to do that. However, I hope that the Government can give assurances that, if it has not already been done, work is being undertaken to ensure that UK and EU children, and indeed older learners such as those who may access university or further education courses, will at the very least continue to have access, on terms that are no less favourable overall, to the educational opportunities they currently have, after the end of the transition period.