Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, to be clear at the outset, we will support Amendment 56 in the name of the noble Lord, Lord Anderson, and I will not divide the House on Amendment 59. I shall speak to Amendment 63, which is tabled in my name and has cross-party and Cross-Bench support.

I welcome the positive move that the Government have made on SDPOs, particularly removing electronic monitoring and limiting an SDPO’s renewal to only once to take into account some of the concerns raised in this House and the other place. Despite this, it remains my view that it is necessary to pursue the wholesale removal of Clause 20. It is simply not proportionate, necessary, Human Rights Act-compliant or good value for money to introduce a power to allow serious disruption prevention orders to be given without a conviction being made.

This is not just my view. The Joint Committee on Human Rights agrees that Clause 20 would interfere

“with legitimate peaceful exercise of Article 10 and 11 rights”

and that:

“The police already have powers to impose conditions on protests and to arrest those who breach them.”


Amnesty International also agrees, saying that Clause 20 is “wholly disproportionate”, restricting

“the exercise of a fundamental right of peaceful assembly based on past conduct and there is no requirement that the past conduct be of a serious nature.”

The Metropolitan Police Commissioner also agrees, confirming this week that “policing is not asking for new powers to constrain protests”.

Experts agree that, since the police already have the powers they need and since this new power would threaten the fundamental right to assemble peacefully, the Government would be wise to think again on this matter. The UK cannot condemn authoritarian regimes cracking down on protests and at the same time celebrate the bravery of protests such as the umbrella movement or the white paper protesters. I will divide the House on Amendment 63, and I hope the Government will use this opportunity to remove this harmful provision.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have contributed to this shortish debate. This group contains notices to oppose, so I will start with those amendments which take issue with serious disruption prevention orders as a whole. The feeling expressed by noble Lords when speaking to these amendments is clear, but I do not support the full removal of these provisions, and it is important that I make clear the reasons why.

Peaceful protest is a fundamental part of our democracy, but causing serious disruption under the guise of a protest is not. Why should protesters who are determined repeatedly to inflict serious disruption continue to be allowed to do so, especially when their actions impact those who simply wish to go about their daily lives, and potentially risk the safety of our emergency services? SDPOs will give the police and the courts the powers that they need proactively to prevent protesters causing serious disruption, time and again. Those protesters found in breach of an SDPO will be liable for arrest, meaning that the police will not need to stand by until an act of protest-related serious disruption has already taken place before they can act.

Some will argue that many of these protesters are already arrested, but a small group of individuals who have been arrested during disruptive protest action have reoffended soon after. To deter this small group of individuals, SDPOs provide an alternative, non-custodial route to prevent those who have a track record of causing serious disruption in the name of protest. SDPOs will prevent protesters causing harm by subjecting them to proportionate and necessary restrictions or requirements. Such restrictions might involve stopping a protester who has previously locked on carrying an item that would assist them doing so again or require a protester, for example, to report to a police officer at the time when a planned protest is due to take place. I should make it clear that it will be up to the courts to consider what measures are put in place on a case-by-case basis to ensure that they are both proportionate and necessary.

In Committee, concerns were raised that SDPOs are a harsh and intrusive way of preventing serious disruption. However, it is important to make it clear that a prohibition or requirement of a preventive order is much less intrusive than a prison sentence, which is a potential consequence of some of the protest-related offences that can lead to an SDPO.

Many noble Lords have asked whether anybody at a protest could be subject to an SDPO. As I hope I made clear in Committee, only those who have committed protest-related offences, breached a protest-related injunction or caused or contributed to protest-related activities on at least two occasions would be considered for an SDPO. It is for the courts to decide whether someone’s actions caused or contributed to serious disruption at a protest and meet the threshold of an SDPO.

In answer to my noble friend Lord Hailsham’s question, I say that the person potentially subject to an order may present evidence so, yes, the court may consider evidence from the person potentially subject to an SDPO and may adjourn proceedings if the person does not appear for any reason. I should also clarify that Clause 20(6) states:

“On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.”


Therefore the person would need to be present.

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Moved by

[Lord Ponsonby of Shulbrede]

63: Leave out Clause 20

[Lord Ponsonby of Shulbrede (Lab)]

I wish to test the opinion of the House.

Police Misconduct Cases

Lord Ponsonby of Shulbrede Excerpts

Monday 6th February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid that I will have to go over old ground. The arrangements for the misconduct hearing of the former chief constable Mike Veale are a matter for the Cleveland police and crime commissioner, and the management of the hearing itself is the responsibility of the independent legally qualified chair appointed to it. My noble friend is right that legally qualified chairs must commence a hearing within 100 days of an officer being provided with a notice referring them to proceedings, but this period may be extended when a legally qualified chair considers that it is in the interests of justice to do so. I am afraid that I will have to repeat the old mantra that it would be inappropriate to comment further while these proceedings remain ongoing.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, given that the Leicestershire PCC, Mr Matthews, refused the chair of the panel’s request for Mr Veale to be interviewed by the panel, as the law demands he should be, what is HMG’s view of Mr Veale’s resignation last week from his post as interim chief executive officer of the OPCC?

[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.

Rwanda: Memorandum of Understanding

Lord Ponsonby of Shulbrede Excerpts

Monday 6th February 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as we have heard from my noble and learned friend Lord Morris, it was in 1924 that the original Ponsonby rule was put in place; indeed, he was my great grandfather. The noble Lord, Lord Kerr, believes that elements of that are still in place, even though the Government believe the CRaG Act supersedes the Ponsonby rule. Nevertheless, the principles underlying the Ponsonby rule are still the principles that this House should aspire to in properly scrutinising international agreements, particularly when they are so controversial as the agreement we are currently discussing.

I thank my noble friend Lady Hayter for this Question and for her persistence. I trust that she will return to this matter in future debates and in the committee’s future work because the issue itself is not going to go away. I think all noble Lords who have spoken obviously believe that the Government have taken this route of action to avoid parliamentary scrutiny. I would like to have an in-principle defence of the approach the Government have taken because it seems to me that bypassing Parliament undermines Parliament itself and undermines the agreement which has been reached with the Rwandan Government.

My second point is about the agreement. There are a number of basic questions on the agreement’s merit—its cost, its viability, its lawfulness. We have heard that there is a backlog of 140,000 asylum seekers; we have heard the figure of £140 million or more being spent which so far has achieved nothing. It seems to me that the Minister has some serious questions to answer about the merits of the scheme itself, let alone the way the Government are seeking to put this in place. I hope that he can talk about both the principle and the practicalities of the memorandum of understanding that the Government have put in place. I also hope the Minister can reply to the question from the noble Lord, Lord Udny-Lister, about the possibility of a multitude of bilateral agreements for deportation and whether the Government see that as a way forward.

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

Lord Ponsonby of Shulbrede Excerpts

Tuesday 31st January 2023 Grand Committee

[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.

Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

I am afraid that a secondary element to this general argument is that we have been reminded recently that some police officers abuse their powers—and a minority of police officers have clearly been doing so in a number of cases—and then here are more powers which are rather too easily abused. It is very easy to say to someone, “You are resisting my clear observation that you are carrying something that could be used in a protest.” A new situation is being created in which police officers are given more power over, for example, women, who are encouraged to be cautious about getting into a police car or accompanying a police officer if he says she had better go with him. This is allowing more situations with that kind of problem to arise. It is all completely unnecessary: existing powers can be used in all the threatening or worrying circumstances which this clause seeks to address. We do not need it but, worse than that, it is potentially damaging.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will make only a very brief intervention. I agree with what my noble friend said in her introduction of this group, and also what the noble Lord, Lord Paddick, said about his Amendments 19 and 31. I am looking forward to the Minister’s explanation of Amendment 29 and how that is a more appropriate amendment than Amendments 19 and 31.

One thing I can add to this interesting short debate is as a magistrate who deals regularly with the issue of reasonable excuse, and it is something we have got used to dealing with over many years. The context in which I see that excuse is when someone is carrying a knife or a bladed article. That is almost invariably the defence that one hears when one is in court. That is something that we are used to dealing with. It is also something that there is a lot of public interest in, so changing definitions and giving more scope to more complex laws does not help the courts. The courts have, in these contexts, the defence of reasonable excuse and they are well used to dealing with it. Nevertheless, the amendments in this group have been well presented and I look forward to the Minister’s response.

[Lord Davies of Gower (Con)]

My Lords, the amendments in this group take issue with offences listed in the first five clauses of the Bill, so it might be helpful to set out exactly why the Bill is so necessary and how it differs from existing public order legislation. The Bill seeks to speed up the ability of police to pre-empt, intervene and respond to the evolving tactics we have seen from—what can best be described as—a selfish minority of protesters. It also seeks to establish clear stand-alone offences, which target disruptive and dangerous behaviour, and impose sentences that are proportionate to the harm caused.

I have heard many times that the police already have the powers necessary to deal with disruptive behaviour, such as tunnelling or locking on. I disagree. We have only to look at the high levels of disruption as recently as a few months ago to see that more needs to be done. The Bill provides police with the powers necessary to combat these specific offences while ensuring that those who seek to cause serious disruption on private, as well as public, land are held to account. It is completely unfair that the hard-working public have to face misery and disruption caused by individuals locking on to a road or tunnelling under a building site, only to see the perpetrators arrested several hours after beginning their actions and then let off with a light sentence.

Clauses 1 and 2 are a key part of the Government’s plans to protect the public from the dangerous and disruptive protest tactic of locking on. We have seen protesters who use locking on and who tunnel be acquitted on technicalities. Therefore, it is important to have clear, stand-alone offences for locking on and tunnelling. This ensures that those intent on causing serious disruption for others can be brought to justice quickly and given a proportionate penalty that reflects the harms they have caused. The “going equipped to lock on” and the “going equipped to tunnel” offences enable the police to intervene earlier to prevent serious disruption. Dealing with a tunnel or a lock-on is extremely resource-intensive, taking hours of police time, which could be much better spent tackling other crimes and disorder on our streets. Surely noble Lords would agree that enabling the police to act before the acts are committed is in everyone’s best interests.

The Government are on the side of the public and will act to ensure that the public are protected from these disruptive acts. We welcome Extinction Rebellion’s sensible new year’s resolution to

“prioritise attendance over arrest and relationships over roadblocks”.

However, Just Stop Oil and Insulate Britain are digging their heels in and have committed to continue trampling on the lives of others. Faced with this threat, it is clear to me that Clauses 1 and 2 should stand part of the Bill. Therefore, I respectfully ask the noble Baroness, Lady Chakrabarti, to withdraw Amendment 9.

Amendment 19, tabled by the noble Lord, Lord Paddick, limits the extent of the offence of causing serious disruption by being present in a tunnel to tunnels which have been created through the commission of the offence of causing serious disruption by tunnelling. I thank the noble Lord for tabling this amendment and accept the need for clarity in distinguishing between those who cause serious disruption in a tunnel created for the purposes of or in connection with a protest, and those who cause serious disruption in tunnels such as the London Underground tunnels.

My noble friend Lord Murray previously committed to considering this matter further: subsequently, the Government have tabled Amendments 21, 29 and 30. These amendments provide that the offence of causing serious disruption by being present in a tunnel, as defined by Clause 4, is committed

“only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.”

The Government’s amendments provide clarity in the legislation on the scope of the offence. This means that people who cause serious disruption in tunnels not created for the purpose of or in connection with a protest—such as the London Underground tunnels—would not fall within the scope of Clause 4. In contrast to Amendment 19, it also includes no additional burden for the courts when prosecuting offences under Clause 4, in that they would not be required to show that an offence has occurred under Clause 3 as well.

Finally, Amendment 31 raises the threshold at which an object may be captured within the scope of the “going equipped to a tunnel” offence, as doing so would limit the effectiveness of the offence. We are trying to ensure that the police can act proactively before these harmful tactics are used. The amendment in the name of the noble Lord, Lord Paddick, raises the threshold for intervention too high. In light of this, I hope noble Lords will support the amendments in the Government’s name and reject the other amendments in this group.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we also support these amendments. As my noble friend Lady Chakrabarti made clear in her introduction, her Amendment 38 would remove

“the Secretary of State’s power to make regulations by statutory instrument amending subsection (6) to add a kind of infrastructure or to vary or remove a kind of infrastructure; or to amend section 8 to re-define any aspect of infrastructure included within the new criminal offence.”

As she explained, she is trying to give the Secretary of State a slightly more limited remit to introduce Henry VIII powers, along the lines suggested in her amendment.

The noble Lord, Lord Paddick, has explained his Amendments 39 and 40 very well. I will not repeat his explanation, other than to say that we are in favour of them in general terms.

[Lord Davies of Gower (Con)]

My Lords, Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, seeks to remove the delegated power for the Secretary of State to amend, add or remove infrastructure in the list under the legal definition of “key national infrastructure”. We have heard throughout the passage of the Bill about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power which will allow us to respond effectively to emerging threats. This was the position taken in Committee when this amendment was first tabled, and it is still the Government’ position. I assure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.

I turn to Amendments 39 and 40 tabled by the noble Lord, Lord Paddick. Amendment 39 seeks to narrow the scope of “rail infrastructure” to exclude protests that do not directly impact on the operation of trains, while Amendment 40 seeks to narrow the scope of “air transport infrastructure” to exclude infrastructure that is not essential for the purpose of transporting passengers and goods by air. As was noted when these amendments were considered previously, the scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8.

I would be keen to hear from the noble Lord, Lord Paddick, what he deems to be the essential and inessential elements of rail and air transport infrastructure. Rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.

Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, this has been a long and passionate debate. We support Amendment 45 and only Amendment 45 in the name of the noble Baroness, Lady Sugg, signed by all sides of the House—the noble Lords, Lord Ponsonby of Shulbrede and Lord Hogan-Howe, and my noble friend Lady Barker.

As many noble Lords have said, this is not about the rights and wrongs of abortion. This is about someone who has made the very difficult decision to seek the help of an abortion service provider. As they approach the abortion clinic, they should not be met with groups of individuals whose sole purpose is to stop the woman securing the abortion services she is seeking. Of course, that does not necessarily mean physically standing in the way, but the mere presence of individuals can be intimidating to vulnerable people who are seeking such help.

It has been said that these individuals want to offer advice, but, if they are being honest, that advice is, “Don’t have an abortion”. Abortion service providers have to assess the needs of the individual seeking an abortion and offer advice and counselling on the options available, including: adoption; government and NHS support for if they decide to go through with the pregnancy; and the implications of having an abortion. Those who propose alternative amendments must surely accept that the presence of anti-abortion protesters in buffer zones amounts to a last-ditch attempt to prevent abortions, not to provide the objective, even-handed, science-based advice that is provided by abortion service providers.

Amendment 45 ensures the measure passed by 297 votes to 110 in the other place is European Convention on Human Rights-compliant. My understanding is that the Minister will confirm that the Government now consider this to be the case. We do not support the amendments in the name of the noble Baroness, Lady Morrissey. Amendment 41 seeks to remove the chance of a person being criminalised for expressing an opinion on abortion from their front garden or balcony. If there is a discussion going on between individuals in such places, they are unlikely to be heard by passers-by. If they are shouting at each other, either with the intent of influencing those attending abortion services or being reckless as to whether they might influence that decision, they must be covered by this clause. It is quite clear what Amendment 45 seeks to achieve, and the noble Baroness’s amendment is unnecessary.

Amendment 42, the noble Baroness claims, provides a pragmatic, reasonable approach to amend Clause 9 in a manner that respects the will of the Commons and seeks to make the clause more likely to be compatible with the ECHR. Yet Amendment 45 provides a pragmatic, reasonable approach that respects the will of the Commons and, the Government believe, is compliant with the ECHR. With respect, a safe access zone law from the state of Victoria, Australia, has not been tested for its compliance with the European Convention on Human Rights.

Amendment 43 may replace punitive prison sentences with fines compatible with similar offences, but so does Amendment 45. We do not support the amendment in the name of the noble Lord, Lord Farmer, supported by the nobles Baronesses, Lady Fox of Buckley and Lady Hoey. The purpose of the amendment, among other things, is to review the necessity of further legislation in this area, and whether legislating further would be proportionate.

Why has the noble Lord not put down such amendments to every other clause in this Bill, as there is overwhelming evidence, including from the police, from Just Stop Oil protesters, who are going to change tactics because too many of them are in jail under existing legislation, and many others, that legislating further on all these other issues is disproportionate?

I am grateful to Racheal Clarke at BPAS for her advice and briefings on this issue, where the case is strongly made for this clause, as amended by Amendment 45. Half of those treated by abortion clinics last year attended abortion clinics targeted by anti-abortion groups—more than 100,000 people. Protesters target the most-used clinics. People are delaying seeking abortion services because of encounters with anti-abortion protesters in the vicinity of abortion clinics, adversely affecting their clinical outcomes as well as suffering psychological impact. Police at a local level report being unable to address existing problems because of a lack of legislation.

Of the 50 abortion clinics targeted in the last five years, only five are now protected by public space protection orders, which are expensive for local authorities to prepare cases for and fight in the courts, were they to be challenged, and have to be renewed every three years. The threat of such challenges deters some local authorities from taking action when it is needed, and the refusal of a local authority to apply for a PSPO cannot be challenged. Unlike the rest of this Bill, there is clear evidence of the need for this clause as amended by Amendment 45.

Amendment 45 significantly amends the existing Clause 9. It takes into account many of the concerns expressed by noble Lords in Committee, and the Government now believe that it is compliant with the European Convention on Human Rights. We have had the judgment of the Supreme Court on similar legislation in Northern Ireland, as I referred to in a previous group. This clause, as amended by Amendment 45, is necessary and proportionate and we will support it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a wide-ranging and fascinating debate, and some would say that this may be the House of Lords at its best.

I shall first address the amendments moved by the noble Baroness, Lady Morrissey. She has come late to the party, and I have to say that I think that her amendments have suffered for that reason. Her amendments have not been tested against the Human Rights Act in any way; we do not know what the House of Commons would think about them, and we do not know what the Supreme Court would think about them. Of course, that is in contrast to Amendment 45, where we have a good view of the House of Commons’ likely view, as well as that of the Supreme Court, and as far as we know it is HRA compliant. So I think the noble Baroness has difficulties with her amendments.

The noble Lord, Lord Farmer, spoke to his Amendment 44 and spoke about the lack of use of public space protection orders. I thought that we heard very effectively from the noble Lord, Lord Hogan-Howe, about how public space protection orders had not in practice been put to any great use. In fact, the noble and learned Lord, Lord Etherton, in his speech also explained why they were not suitable for protecting individuals, as opposed to the rights of groups. But I have to say that I think that the noble Lord, Lord Farmer, betrayed himself at the end of his speech when he spoke about the lack of evidence of public disorder, which he prayed in aid for having a review. I have to say that I am not thinking about public order —I am thinking about the individual women who are going to get these services and are being intimidated through cruel protest, in many ways.

I turn to the amendment from the noble Baroness, Lady Sugg, to which I also have my name. I pay tribute to her for all the work that she has done on this matter; I know that she has been in constant discussion with Members of the other place and the Government, and this really is as good a chance as we have to get something on the statute books in good time. As I say, I pay tribute to her. I am also pleased that the noble Lord, Lord Beith, has welcomed these efforts.

One of the most influential speeches was from the noble Lord, Lord Hogan-Howe, who talked about the practicalities of policing a 150-metre zone and local authorities being reluctant to put in place public space protection orders. He also talked about the ingenuity of protesters potentially being able to get around the amendment of the noble Baroness, Lady Morrisey. That was perhaps one of the most influential contributions this evening. I hope that the noble Baroness tests the opinion of the House and I look forward to the Minister’s response.

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

My Lords, I echo other noble Lords who said that this has been a wide-ranging and fascinating debate. As has been referenced and as noble Lords will be aware, through a free vote in the other place, Clause 9, which establishes buffer zones outside abortion clinics in England and Wales, was added to the Bill by 297 votes to 110. I said during the Second Reading of the Bill and in Committee that the Government will respect the will of the House of Commons.

At the time of introducing this Bill in the House of Lords, I signed a Section 19(1)(b) statement under the Human Rights Act 1998. This was because, at the time, we believed it was more likely than not that Clause 9 would be found to be incompatible with the European Convention on Human Rights. We have considered this again following the Supreme Court’s judgment in relation to the Abortion Services (Safe Access Zones) Bill in Northern Ireland. We now believe that Clause 9 is more likely than not to be compatible with the convention. However, we must be clear that while we can draw some parallels between Clause 9 and the Bill in Northern Ireland in relation to the balance of rights, they are not directly comparable. In particular, the threat levels from protests are different in Northern Ireland and the Northern Ireland Bill does not cover private property. It is also worth noting that the legislation in Northern Ireland is not yet in force. There have been no prosecutions, so it is difficult to make any assessment regarding enforceability of the Bill in Northern Ireland.

Clause 9 was described at the time in the other place as a “blunt instrument”, as others have noted. There is always a balance to be struck between the rights of protesters and the rights of others to go about their daily business free from harassment and disruption, as we have heard debated in relation to many of the other clauses of this Bill. People’s rights to gather, express their views and practise their religious beliefs are protected under Articles 9, 10 and 11 of the European Convention on Human Rights. People’s rights to privacy in accessing healthcare services are protected under Article 8. All these rights are qualified, and it can be appropriate to infringe on them sometimes—for example, to protect other rights or prevent crime.

The Government committed to work with noble Lords across both sides of this debate to make Clause 9 clearer and more enforceable. I thank those noble Lords who took the time to meet me and discuss this issue, and I can assure them that all views were taken into careful consideration and constructive conversations were had on all sides.

The Government have decided to step back and will take a neutral stance during this debate. I committed, as I said earlier, at this Dispatch Box to respect the will of the House of Commons, and I think the best way to do that is to allow the House of Lords to express its will. This clause will undoubtedly be tested in the courts. But this evening, we are offering a free vote to noble Lords on the Government Benches—although I cannot speak for the other Benches—so that noble Lords can vote with their conscience on where the balance of rights should lie.

The Government believe that all the amendments on the Order Paper today would more likely than not be found to be compatible with the European Convention on Human Rights. With that, it is now for the House to decide which amendment, if any, they wish to support.

Police and Crime Commissioners: Accountability Arrangements

Lord Ponsonby of Shulbrede Excerpts

Wednesday 25th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I have to say—and it will not please my noble friend—that the misconduct hearing of Mike Veale, who is, as noted, the former chief constable of Cleveland, is a matter for the Cleveland police and crime commissioner, and the management of the hearing itself is the responsibility of the independent, legally qualified chair appointed to it. It would be inappropriate to comment further while those proceedings are ongoing. As to why this has lasted longer than the normal 100 days of an officer being provided with a notice, it can be extended when the legally qualified chair considers it is in the interest of justice to do so, and I believe that is the case here.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, on 21 December in response to an earlier question by the noble Lord, Lord Lexden, the noble Lord, Lord Sharpe, described the situation as very concerning. That was in respect of the issue which the noble Lord, Lord Lexden, has just reminded the House about. Since then in the press it has become evident that the Leicestershire PCC has paid out £56,000 in compensation after an ethics group claimed it had been dismissed unfairly, so does the Minister believe that recall legislation should be considered for PCCs?

[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.

Rape: Operation Soteria

Lord Ponsonby of Shulbrede Excerpts

Monday 23rd January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, we have put a lot of funding into the police, as the noble Baroness will know. The Ministry of Justice has allocated significant funds towards victims’ groups, and so on and so forth. In the year ending June 2022—and this comes off the back of the last rape review—the police recorded an increase in rape offences of about 20% compared to March 2020. Eighteen months into implementing the rape review action plan, we have seen some improvements: the number of adult rape cases referred by the police to the CPS was up 96%; the volume of adult rape cases charged by the CPS was up about two-thirds; and the number of adult rape cases reaching court was up 91%. Progress is being made—not quick enough, I agree.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, for the Minister’s information, Professor Betsy Stanko wrote the Operation Soteria report. One of the things she recommended in that report was the improvement of data quality. It may sound mundane, but it is at the heart of improving police force quality and the response to sex and rape allegations. One of the central points she made was that the data was unevenly recorded across the country. Does the Minister agree that this should be seen as a priority to try to do better for victims, who are not getting the justice they deserve?

[Lord Sharpe of Epsom (Con)]

I agree with the noble Lord and thank him for the clarification—the professor predated me, obviously. Operation Soteria is bringing together all aspects of policing and CPS work with regards to rape cases. It is elevating the status of the victims above those of the suspects, which I would argue is long overdue. As part of that, and in order to validate the work of the operation, it is clear that data collection has to be uniform across the country. It will be available to be rolled out in June, as I say, across all police forces, but it is showing signs of improvement.

Asylum Seekers: Local Authority Accommodation

Lord Ponsonby of Shulbrede Excerpts

Monday 16th January 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

Clearly, the coalition policy to allow private providers of accommodation to perform that service is working well, and the Government have no intention of revising that policy.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, at the end of last year, the Prime Minister pledged more staff to clear the asylum backlog, when it emerged that the Home Office had failed to process 98% of channel crossing cases in the last 12 months. Can the Minister confirm whether recruitment has begun?

[Lord Murray of Blidworth (Con)]

Clearly, there was such a commitment. I do not wish to reveal any great secrets, but it is a very high priority for the department and I anticipate that good news will be making its way to this House shortly.

National Security Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, my Amendment 81 is a bit wider than that of the noble Baroness, Lady Ludford, who is certainly a heavyweight in my book. I agree with what she has had to say about that.

Post-legislative scrutiny can take many forms, but where powers are exercised on the basis of secret intelligence, the options are more limited. Select Committees can do little, because they lack access to classified information. The Intelligence and Security Committee has that access, but its remit is focused on the intelligence agencies themselves. It is not equipped to review the operation by police and prosecutors of the new criminal offences in Part 1 of the Bill—or the new procedures in that part—or, indeed, to concern itself with the questions of damages and legal aid in Part 4.

The Independent Reviewer of Terrorism Legislation—its origins dating back to the 1970s—is the solution arrived at in one part of the national security landscape. The independent reviewer is an independent person with full security clearance—but without bureaucratic apparatus—reporting to government. Reviewers serve Parliament and the public by reviewing operational matters which, for national security reasons, neither they nor the usual inspectorates can scrutinise themselves. Their findings are often referred to by the courts and their recommendations taken on board by police, agencies and government.

The independent reviewer has spawned two imitators, in Australia and, more recently, in Ireland. I mention that because the independent monitor in Australia and the planned independent examiner in Ireland—the Bill has recently been published—are each entrusted with scrutinising the operation of national security law in its entirety, not just counterterrorism law. The same principle should apply here. The use of laws governing hostile state activity can be both as secretive and as sensitive as the use of laws against terrorism. That, no doubt—as the Minister said in the last grouping—is why the Government have already agreed to extend the jurisdiction of the independent reviewer to Part 2 of the current Bill, which is all about foreign power threat activity rather than terrorism.

Equally compelling, I suggest, are the arguments for independent review of Part 1. Part 1 is a complete recasting of the law against espionage, sabotage and acting for foreign powers. The offences and police powers are novel and untested; the risk of unintended consequences must be high. The offences will presumably be the subject of prosecutions. However, there is no mechanism for systemic oversight, either of the offences or of the far-reaching powers of entry, search, seizure and, in particular, detention, which are the subject of Clause 6, Clauses 21 to 26 and Schedules 2 and 6 to the Bill. Powers such as these can be controversial in their application: they are the meat and drink of the independent reviewer’s work.

Part 4 is all about terrorism and so falls even more naturally within the existing powers of the independent reviewer. History has shown the value of the scrutiny of the independent reviewer, not least in the years after 9/11, during which my noble friend Lord Carlile performed the role with such distinction. It is all the more necessary in this ever-questioning age. Indeed, something of this nature is a prerequisite for what has been called the “democratic licence to operate” that our secret state requires. The current independent reviewer, Jonathan Hall KC— who performs the role with imagination and acuity—has been consulted on this amendment. He is the obvious person to review Part 4 because of the terrorist connection. I suspect he could take on Parts 1 and 2 as well: our counterterrorism law is neither novel nor, for the most part, as controversial as it once was. But in case his apparently infinite energy should ever flag, my amendment—inspired by Clause 54, which it replaces—gives government the flexibility to appoint a different person to review Parts 1 and 2.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I do not have anything more to add other than to say that we support Amendments 80 and 81. The noble Lord, Lord Anderson, summed it up in his closing comments: the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, has been consulted on this amendment and agrees that it would be a suitable way forward. I look forward to the Minister’s response.

[Lord Murray of Blidworth (Con)]

My Lords, Amendments 80 and 81 propose having an independent reviewer to cover more than Part 2 of the Bill. The Government have committed to consider this idea in the other place, and the speech made by the noble Lord, Lord Anderson, was compelling on this point.

The Government have been considering whether extending the oversight of the independent reviewer could be done in a way that does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing oversight mechanisms governing both the UK intelligence agencies and the police. For example, we must consider how extending oversight of the Bill would interact with the Investigatory Powers Commissioner’s role in overseeing the powers referred to in Clause 27. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty as to the appropriate reviewer.

It is proposed that Part 4 of the Bill should be reviewed by the Independent Reviewer of Terrorism Legislation. Of course, Part 4 contains measures to freeze civil damages awarded to claimants seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, these matters are already in the IRTL’s remit to review. An explicit commitment to oversight of Part 4 of the Bill is therefore unnecessary and would duplicate the Independent Reviewer of Terrorism Legislation’s existing discretion to review and report on terrorism-related legislation.

As a point of clarification on a point made by the noble Lord, Lord Anderson, the Government are not extending the purview of the Independent Reviewer of Terrorism Legislation to cover Part 2 of the Bill—rather, they are creating a new independent reviewer role entirely.

With these points in mind, while the Government cannot accept these amendments, we are committed to making a decision on extending oversight of the Bill at the next stage of its passage.

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

My Lords, this group responds to the amendments tabled in relation to the political influence tier of the foreign influence registration scheme and separate amendments tabled regarding guidance on the scheme, impacts of the enhanced tier on the higher education sector and the exemption for legal activities. In addition, it introduces a number of minor government amendments to the scheme, which I will cover shortly.

Before I address the amendments and clauses specifically, let me say that we are not yet able to publish a policy statement relating to the power taken in Clause 77(1), which we committed to do in the Bill’s delegated powers memorandum. The Government are in the process of carefully considering feedback from industry and the important scrutiny in this House. As such, we believe that publishing a policy statement now would only muddy the waters when the Government’s focus is rightly on listening to Peers’ concerns.

It is the first duty of government to protect its people, the country they live in and the integrity of their democratic institutions. The political influence tier of the foreign influence registration scheme will play an important role in delivering on this agenda. Dialogue between policymakers and the rest of society is an essential feature of our democratic system. It provides parliamentarians and Ministers with important information and expert analysis, helping us to become more informed. It allows decision-makers and the public to be exposed to diverse opinions and voices, including from the international business sector. It can be a positive contribution to healthy and robust public debate, and will continue to be welcome in the UK.

However, when communications or disbursements are not transparent, it can lead to corruption or give certain groups an unfair advantage. It can be seen as a way for powerful interests to exert excessive influence on political and governmental processes, potentially at the expense of the British public. It is particularly important to be able to identify foreign influence. The UK Government and the British people are entitled to know when foreign interests seek to influence public policy and public opinion. We should be able to identify foreign influence and evaluate those contributions properly, including the aggregate impact over time. Some foreign lobbying presents risks to national security. Members of the Committee will have heard Ken McCallum, in his annual threat speech in November, discussing the challenge from state threats. He said:

“The West is in a contest in which our security, values and democratic institutions are at stake.”


The Intelligence and Security Committee discussed political influence and state threats in its 2020 Russia report, calling for a scheme like the one delivered through the political influence tier of FIRS, which we are debating here today. The political influence tier of FIRS will play a role in strengthening openness and transparency in those processes, with the additional aim of deterring foreign powers that wish to pursue their aims covertly through agents and proxies. Noble Lords will be aware that some foreign states increasingly seek to influence how we think, vote and feel. Such states view themselves as being in a long-term contest with the West and take a much broader view of what they are interested in than simply national security matters. Covert political influence from state actors can damage our democratic processes, institutions and wider societal cohesion.

The foreign influence registration scheme will require those acting covertly with malign intent to make a conscious choice between registering their activity and publicly declaring their provenance, or not registering and risking prosecution. This raises the cost of conducting such activity and will be a significant deterrent to those who seek to harm our democracy.

Before we move on to the main debate, I will very briefly explain the government amendments in this group. Amendments 82, 89, 99, 100, 101 and 102 make minor technical changes to ensure consistency in the use of “arrangement” and “agreement” across the foreign influence registration scheme provisions. These amendments will assist with the clarity and understanding of the scheme.

Government Amendment 92 amends the existing provisions regarding public communications in the political influence tier of FIRS. This amendment provides that where a public communication is reasonably clear that it is being made by a foreign principal on its own behalf, it will not need to be registered. The Bill already provides an existing exclusion from registration requirements where it is reasonably clear that the public communication is made at the direction of a foreign principal. This is in keeping with our commitment to ensure that the scheme is proportionate and does not impose any unnecessary burdens.

During the last day in Committee, the noble Baroness, Lady Hayter of Kentish Town, raised a number of questions regarding the foreign power condition, which we dealt with at some length last week, and the foreign influence registration scheme. I thank her for her letter and will deal with the core of her questions now, to ensure that this is on the record. On the question of whether a member of this House will need to register when entering arrangements, the responsibility to register under the political influence tier of FIRS will lie with the foreign principal carrying out the activity in the United Kingdom, or with the person in an arrangement with the foreign principal to carry out activities in the United Kingdom. There will be no requirement on the person whom the foreign principal is seeking to influence to register activities. As such, Members of this House would be required to register only if they entered into arrangements with foreign principals to carry out political influence activities in the United Kingdom. This applies equally for arrangements with any foreign entity, including political parties in government or in opposition.

There was also a question in relation to the foreign power condition of why “a governing political party” has been included in the meaning of “a foreign power”. It addresses situations where there is a dominant political party or parties within a country to such an extent that it may be difficult to disentangle whether harmful activities have been carried out on the direction of the ruling party or the Government. The noble Baroness posed the question of what constitutes a governing political party. It is right that this will vary in different countries. Clearly we cannot legislate for every different administrative structure. Rather, in criminal proceedings where this was an issue, the prosecution would have to prove beyond reasonable doubt that a political party was the governing political party based on the facts of the case. Therefore, any political party with no members holding posts in the Government would not be in scope. The definition in Clause 30(2) means that a political party is a governing party only if individuals within that party hold posts in the Government or part of the Government. For example, the Democratic Party runs the US Administration and sets the direction of government policy. It is therefore the governing political party in the US.

To omit Clause 30(1)(e) as the noble Baroness suggested and to rely entirely on the other aspects of the definition of “a foreign power” risks creating a loophole whereby sophisticated state actors could claim to act on behalf of the ruling party but not the Government. To be clear, foreign powers, including governing political parties of a foreign Government or their members acting in their capacity as a member, do not have to register their own activities. However, those in arrangements with foreign entities—including governing political parties—to carry out political influence activities in the UK will need to register those arrangements.

I will be listening very carefully to the remarks made on this group and will respond to the amendments directly in my closing comments. I look forward to this important debate.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in his opening statement, the noble Lord said that the Government plan to publish a policy statement and that the reason they were not doing so now, in anticipation of Committee, was that they did not want to muddy the waters. Can I ask the noble Lord whether he plans to publish that policy statement and make it available before Report?

[Lord Sharpe of Epsom (Con)]

That is certainly my intention, yes.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for making that clear. It will have an impact on the way we address this whole group, because it is a very extensive group and many different groups from different sections of society have contacted us all, I suspect, and raised their concerns. I have been contacted by groups from business, the legal profession, universities and political parties. Some 400 NGOs have written to me, as I am sure they have to other noble Lords.

My Amendment 88, also in the name of the noble Lord, Lord Wallace of Saltaire, would ensure that guidance is provided on the foreign influence registration scheme. Other noble Lords have gone into more specific concerns and explorations of what particular definitions might mean.

I thought it might be most helpful in opening this group, in a sense, to raise two particularly powerful concerns that have been raised with me. I want to cite two groups that have contacted me. The first is the company AstraZeneca, which sent around an email that I thought it worth citing to show this company’s concerns, which illustrate other, wider concerns. It said:

“Clause 70, as drafted would, we believe, impose a requirement for persons in our overseas operations to register each and every dealing with not just Members of the UK Government … but also in Government Agencies such as the Medicines and Healthcare Products Regulatory Agency, The National Institute for Clinical Excellence, The Environment Agency and others where we have regular contact”


on medical issues. AstraZeneca is asking a very profound question about how far these requirements will go and how much impact they will have on its day-to-day business. The email goes much further, but that is the gist of the concern raised.

The other group that emailed me is the Law Society. Of course, all these groups, including the Opposition, support the broad aims of the registration scheme but are concerned about the practical impact and whether it will have a cooling effect on their ability to conduct their existing business. The Law Society email says:

“The Law Society supports the Government’s ambition to protect national security and ensure public safety. However, we are concerned that the proposals in this Bill could have serious implications for access to justice … Law Society members have shared significant concerns with us about the potential impacts of FIRS more generally. These include concerns … that the scheme risks damaging the UK’s largest exporting industry (financial and professional services) and its reputation as one of the world’s most attractive jurisdictions for cross-border business and trade and destinations for foreign investment.”


I have given just two examples, but there are many others. This whole scheme has raised a lot of questions in other sectors; we have heard about political parties and universities. I look forward to this being a wide-ranging debate and the noble Lord giving as full an answer as he can in summing up, but I am grateful for his confirmation that the policy will be available before Report so that, if we choose to, we will have ample time to take matters further.

[Lord Anderson of Ipswich (CB)]

My Lords, while I very much welcome the fact that this policy is under review, I hope your Lordships will agree, in view of the great interest that has been expressed in this subject outside this place, that we take the opportunity to express, at least in summary, the very grave concerns that some of us have about this part of the Bill.

In that spirit, I shall speak briefly to the five stand part notices in my name, signed also by my noble friend Lord Carlile, the noble Lord, Lord Wallace, and the noble Baroness, Lady Hayter. They would leave intact the enhanced tier, which I believe to be of real value for our national security, but if carried they would remove Clauses 66 to 70, the so-called primary tier of FIRS.

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Moved by

[Lord Ponsonby of Shulbrede]

83: After Clause 63, insert the following new Clause—
“Definition of “specified persons”Within 60 days of this Act being passed, the Secretary of State must make regulations under section 63 to define “specified persons”.”Member’s explanatory statement
This amendment means that the Government must define “specified persons”.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 83 provides that the Government must lay secondary legislation to define “specified persons” within 60 days of Royal Assent. A specified person under this Bill is a person who engages another for foreign activity arrangements. The purpose of the amendment is to probe who that could involve and whether they must be representative of a national Government or state. This amendment is further intended to probe the unintended consequences of the FIRS scheme and to illustrate that the legislation as drafted creates uncertainty as to who it applies to.

The Government have also tabled amendments as part of this group to clarify that activities being carried out must be registered at the time that they are carried out. A separate government amendment in this group limits the circumstances when affirmative procedures must be used in relation to defining “specified persons”, removing a layer of scrutiny. I beg to move.

[Lord Sharpe of Epsom (Con)]

My Lords, government Amendments 85, 86, 87, 94, 95 and 96 are minor and technical amendments that will make it clear that a current—rather than a previous—registration, is required to meet the registration requirements of either tier of the foreign influence registration scheme. This will mean that, where previously registered activities are resumed, a current registration will be required rather than a person within scope of the scheme being able to rely on the fact that the activities had previously been registered. This will support the need for the register to remain accurate and up to date, providing the best possible insight into the scale of foreign political influence activities, and activities of specified entities.

Government Amendment 121 ensures that that the clauses are as clear as possible and accurately reflect our intent. To specify an entity on the enhanced tier, the Secretary of State will have a regulatory making power as per Clause 63. Under subsections (5) and (6) of Clause 92, this power to specify will be subject to an affirmative procedure. The amendment adds wording to clarify that the affirmative procedure applies where a new entity is being specified. Where an entity is being de-specified, or an already specified entity is being re-specified—for example, because it has changed its name—a negative procedure will apply, under Clause 92(4). This will ensure that both the specifying and removal of entities from the enhanced tier will be subject to the necessary level of parliamentary scrutiny.

Amendment 83 seeks to require the Secretary of State to define “specified persons” within 60 days of this Act being passed. “Specified persons” are defined within Clause 63 of the Bill; I therefore interpret this amendment as being intended to set a requirement on the Government to specify any entities to which the enhanced tier will apply within 60 days of the Act being passed. The specification of a person will mean that individuals or entities will have to register any arrangements with the specified person to carry out activities in the UK. It will also set a requirement for specified entities themselves to register their own activities. I am sure the House will recognise that these are far-reaching requirements, and it is therefore vital that the designation of a specified entity is done following appropriate consideration and on the basis of circumstances that exist at the time, and the most up-to-date and comprehensive evidence. A blanket requirement to designate all specified entities within 60 days would impede the careful case-by-case basis consideration that is required and would be a disproportionate approach to the specification of persons under this tier. I therefore do not believe that this amendment is necessary, and I encourage the noble Lord to withdraw it.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw my amendment.

Amendment 83 withdrawn.

--- Later in debate ---

The question is: how do we identify this, and how much are we putting on the—often small—businessman, whoever he may be, to try to discover who really owns the company with which he is dealing? Who is the source behind the people to whom he is talking? If the Government are putting that absolutely on the individual in Britain, whose political antennae for what is happening in Malaysia, Kazakhstan or Uzbekistan may not be as high as they might be, then this will be a very difficult Act to implement. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord, Lord Wallace, has raised an interesting but complicated question to answer. He has given various examples of the complications involved in trying to identify the owners of companies. From my own experience as a part company owner and director, I did not know who the shareholders in my own company were, once the ownership was traced back. This is a very difficult and involved question, and I look forward to the Minister’s response.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for their contributions; it is indeed a complex issue. Amendment 83 seeks to provide that, where an entity receives 25% or more of its revenue from a foreign power, it can be considered as subject to control from a foreign power and eligible to be specified under the enhanced tier of the scheme. I commend the spirit with which this amendment has been made. The noble Lord’s aim of increasing transparency supports the objectives of the scheme, but it is vital that we strike the balance of proportionality.

It is important that we maintain a distinction between funding, or donations, and control. However, I hope the noble Lord will be reassured that where, in practice, funding does result in a foreign power directing or controlling the activities of the entity, a condition for foreign power control already given in Schedule 13 will still be met. Where this condition is met, it will be possible to specify the entity under the enhanced tier.

We recognise that it is imperative that this scheme maintains the flexibility to adapt, should a foreign power seek to take action to evade the scheme’s scope and requirements. Part 3 of Schedule 13 provides this necessary flexibility by allowing for the conditions of control to be amended for permitted purposes by regulation. For these reasons, the Government cannot accept the proposed amendment and invite its withdrawal.