Immigration (Health Charge) (Amendment) Order 2018

Lord Rosser Excerpts

Wednesday 28th November 2018 Lords Chamber

Moved by

[Lord Rosser]

At end to insert “but that this House regrets that the Order provides for an unaffordable level of fee, particularly for those who came to the United Kingdom as young children; does not take into account the contribution of migrants who are taxpayers; and may have a detrimental effect on recruitment for key public services, including nursing.”

[Lord Rosser (Lab)]

My Lords, as the Minister said, for the last three years, under the Immigration Act 2014 an annual health charge has been payable by non-EEA nationals making an immigration application to enter or remain in the United Kingdom. That charge has been on top of any immigration application or visa fees, and was introduced as part of a clampdown on what has been described as health tourism.

I do not intend to go down the same road as the Secondary Legislation Scrutiny Committee, whose report on this order states, at paragraph 7:

“While acknowledging that the revenue to the NHS will be increased, it is still not clear to the Committee why the charge remains below the full cost of supplying these services”.


It ended by suggesting that:

“The House may wish to ask the Home Office Minister to justify this subsidy”.


That is not an invitation that I will take up; it is upto the Minister whether she chooses to explain the Home Office’s argument to justify this “subsidy”, as the committee described it. I want to raise the matter of the high level of the charge, the increase and the impact that it will have.

As the Minister said, the order doubles to £400 a year the immigration health charge payable when an immigration application is made, with it being doubled from the current £150 to £300 for students and their dependants. The payment cannot even be made in instalments, and must cover the total cost up front for the duration of the leave applied for. It is payable in respect of each individual named on the immigration application.

The present charge was determined in 2015. What has the increase in NHS expenditure been since then on average for immigration health surcharge payers? Could the Government give a breakdown of their estimate of £470 on average per year per charge payer? The Secondary Legislation Scrutiny Committee drew attention in its report to the fact that one part of the Government’s documentation referred to the revised charge being £470 per year per person, while a subsequent part of the impact assessment refers to it being £480, but perhaps that is not worth quibbling about.

What was the equivalent estimated cost in 2015, when the charge was first imposed? The Secondary Legislation Scrutiny Committee tells us at paragraph 3:

“When the charge was originally introduced in 2015 we drew the matter to the attention of the House, questioning why it was set at £200 per person per year, significantly below full cost recovery levels, then estimated at £800 per person per year”.


If I am looking at comparative figures—if not, I am sure that the Minister will correct me—how was the full cost recovery deemed to be £800 per person per year in 2015 but is not at that level currently? Apparently it is now either £470 or £480. That fact does not exactly inspire much confidence in the figures put in front of us in the Government’s documentation. Can she comment on that?

The charge that we are talking about is payable on an annual basis until such time as the person to whom the payment relates is granted indefinite leave to remain in the UK or returns to their own country at the end of their visa period. Applying for two and a half years of limited leave to remain will require an immigration health charge of £1,000 to be paid. As I understand it, paying the charge means that the person covered is exempt from the system for undocumented migrants in the UK of up-front charging of some 150% of the estimated cost of treatment prior to accessing secondary NHS healthcare.

The increased charge will hit children who have grown up in the UK but have uncertain status particularly hard. These are not temporary migrants. If they can make an application for leave to remain they are granted just two and half years leave at a time and will have to make four applications over the course of 10 years. That costs just over £6,500 in application fees, plus an additional £2,000 for the immigration health charge, at the current rate of £200 per annum, before they can be granted settled status or indefinite leave to remain—a total of just over £8,500. With the doubling of the immigration health charge to £400, which the Government intend to levy from February next year, a further £2,000 will be payable over the 10-year period, bringing the total to over £10,500.

For migrants on lower incomes in particular, this significant further increase will mean even greater difficulty in finding the not-inconsiderable up-front costs required to secure or maintain regular status in the UK. That will have an impact on the quality of children’s lives, not least if problems arise over finding the money to pay the rent, and increase the prospect of poverty or deepening existing levels of poverty. Bear in mind that an immigration application can become invalid by the non-payment or even partial payment of the immigration health surcharge. Yet, without regularised status a migrant cannot access housing, education and health services, the latter in particular posing a potential public health risk.

I accept that it is true that there is a system of exemptions and fee waivers, but apparently less than 8% of children are granted fee waivers. A family of four with working parents would be required to save some £8,100 every two and half years, excluding legal costs. As I understand it, that is more each year in immigration fees than the average UK household spends on food. Yet, parents in employment would also pay national insurance and taxes, contributing towards the cost of the NHS. They would thus, in effect, be charged twice.

Interestingly enough, as far as I can see, the impact assessment makes no reference to the potential impact on children and young people and their rights—in particular for those who have grown up in the UK and are on the 10-year route to settlement—of the doubling of the immigration health surcharge. How does that square with the Government’s stated commitment to consider children’s rights when developing policy? Will they now carry out that assessment? What steps will the Government take to ensure that low-income families who might be ineligible for a fee waiver under the current system do not risk losing their status because of the high fees and the high health surcharge, along with the requirement for up-front payments?

If I am right in believing that a report by the Independent Chief Inspector of Borders and Immigration is due on Home Office charging for services, including the impact of high fees in the immigration system, why is the immigration health surcharge being doubled now before we have had the chief inspector’s report?

The immigration health charge will also have an impact on those non-EEA citizens either working or thinking of coming to work in this country. The increase in the immigration surcharge could also worsen the skills shortage in a number of key areas, such as the construction and hospitality sectors, and in health services. For example, the charge has to be paid by non-EEA international nurses and their families coming to work in health and care services across the UK. At present, there are apparently some 40,000 such nursing vacancies in England, a figure that is estimated to rise further. There appear to be no guarantees that the immigration health charge will not be applied to EU citizens after Brexit and potentially make skills shortages even more acute.

--- Later in debate ---

[Baroness Williams of Trafford]

We do not share management information data because it is purely that—management information. As I understand it, we are seeking to resolve this issue with Coram Children’s Legal Centre, and when we do I will be happy to write to the noble Lord with the outcome.

I hope that noble Lords are satisfied with my response, although I suspect they are not, and that the noble Lord will feel happy to withdraw his amendment.

[Lord Rosser]

I thank the Minister for her response. I did not get the impression that she was particularly excited about some of the things that are presumably in the brief in front of her when she responded to the numerous questions that have been asked. Nevertheless, she always—and I mean this—seeks to respond to the questions raised. We are grateful for that—and I mean that too.

I also thank all noble Lords who have participated in this debate. It seems quite a long time ago that I moved the amendment. I do not intend to make another lengthy speech or go through all the points. I was certainly struck by the view of the noble Lord, Lord Lansley, that it is a bargain. Whether he believes that it is a bargain for young children, which is one of the issues mentioned in my amendment, I do not know. Obviously, from the way he said it, I assume that he does, but I and some other noble Lords fundamentally disagree with his view. On that score, though, I respect his opinion and the arguments that he made.

During this discussion and in the response we have had from the Minister on behalf of the Government, great stress was laid on estimated costs and how the charge has been looked at against estimated costs. Very little was said about looking at the income of some of the people who will have to pay those costs. It is all being looked at from a cost point of view; it has quite obviously not been looked at from the point of view of the impact on the total incomes of those who will have to pay the charge, not least of those in low-income families.

[Baroness Williams of Trafford]

I apologise for intervening on the noble Lord. I said that I would write to noble Lords with an illustrative example of a nurse, if that helps.

[Lord Rosser]

I appreciate that the Minister said that she would write. I would be very grateful indeed if, when she writes, she will address this issue of the impact of the charges on the incomes of those who will have to pay it, particularly those on low incomes and with families with children.

There is another example of the way that the Government look at the issue. When reference was made to the impact on nurses, the answer was: “You solve it by increasing pay”. Yes, there has been a small increase in nurses’ pay, but there have not been very big increases over the past eight years. The charge is being doubled but I do not think that nurses’ pay is being doubled. I do not think that nurses will necessarily feel that the relatively small increase they have just had—they have not had much over the past few years—will be any real compensation for having to pay, for one specific item, a doubled charge. One does not get the impression that the Government have looked at this from the point of view of the impact on incomes, particularly for those among the less well off.

I think I heard a comment—I will withdraw my remarks if I am incorrect—which almost seemed to say that when low-income families are faced with this additional charge, it is up to them to arrange their finances accordingly. That was the thrust of the argument and how it came across to me. That is another indication that this has not been looked at from the point of view of the impact, particularly on people on low incomes and with children.

I am grateful to the Minister for saying that she will write. I hope she will perhaps reflect further on the point made by the noble Lord, Lord Russell of Liverpool, and my noble friend Lady Lister about the child rights impact assessment. I hope she will address that issue in her response on behalf of the Government. I know that she will give examples, but I also hope that she will reflect further on looking at the fee-waiver rules on destitution. “Destitution” implies that one must be in a pretty desperate state before receiving any assistance. The figures on the numbers of those getting the waiver appear to bear that out. No doubt the Minister will give examples in her reply—without indicating who she is talking about or anything like that—of the kinds of situations and income levels to which those fee-waiver rules have been applied up to now. At least then we could get a feel for the issue.

The answer given on why there had been no public consultation rather took my breath away. Apparently, it was because there was a manifesto commitment to £600. That seems an extraordinary reason for saying that there will be no opportunity for people to comment on what the Government are doing in the sense of how it will apply and its impact. I would have thought that any Government would want to put something like that out for consultation to get responses from people on the impact of such a doubling of charges.

I was very surprised to find that we have a Government who believe that they should not do any further consultation on the impact of something—not the principle of whether they will do it—and on how they might mitigate that because of a figure in a manifesto that they intend not to keep but to put at a lower level than is in the manifesto, which I am not complaining about. However, if the argument is that people voted for an increase in the charge to £600—it is difficult to believe that votes in the general election were determined solely by that—then they have not got what they voted for because the charge is less than that. Again, I am not complaining about that. I find it extraordinary that that was used as a reason for not consulting and giving people an opportunity to comment on the impact on certain people of doubling the charges.

I raised the issue of the child rights impact assessment. As I said, I hope the Minister will address that in her response. I will bring my comments to a conclusion. We opposed this matter in the Commons, where the order was agreed to in a vote. I tabled my amendment today to emphasise our continuing serious concerns about the impact of this increase in the immigration health charge but it is not my intention to press it to a vote.

[Baroness Jones of Moulsecoomb]

Before the noble Lord sits down, will he reconsider withdrawing his amendment? I honestly think that the Government have got this completely wrong. That is the mood of the House. Therefore, he might get considerable support.

[Lord Rosser]

I thank the noble Baroness, Lady Jones, for that contribution, but I have to say no; I am not prepared to reconsider the decision not to push it to a vote. We made our intentions clear beforehand and I have no intention of going back on what was said about pursuing this to a vote. However, I appreciate where the noble Baroness is coming from.

I hope that the Minister will read through this debate—I know she will, she does it automatically—because questions have been raised and, inevitably, she has not been able to respond to them all. I hope she will look at that and respond to ones she has not been able to reply to at the Dispatch Box. She has replied to a great many questions.

I also hope the Government—this pursues the point the noble Baroness, Lady Jones, made—will have got the message that there is a good deal of disquiet about the impact of doubling this charge in particular areas, not least in relation to children and school shortages. I hope the Government will have got that message and will look at this again when they come to their White Paper on the future immigration system. We have to await the chief inspector’s report on Home Office fee levels and see what that says; it may or may not make a comment on the charges we are talking about. I will leave it in that context and I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

Investigatory Powers Tribunal Rules 2018

Lord Rosser Excerpts

Wednesday 28th November 2018 Lords Chamber

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

My Lords, I am pleased to be given the opportunity to debate the updates to the Investigatory Powers Tribunal Rules in the House this afternoon. Before I address the updates to the rules, I will briefly cover the background to the Investigatory Powers Tribunal, as well as some key statistics.

The Investigatory Powers Tribunal, which I will refer to as the tribunal from now on, was established under the Regulation of Investigatory Powers Act 2000. The tribunal replaced the Interception of Communications Tribunal, the Security Service Tribunal, the Intelligence Services Tribunal and the complaints provision of Part III of the Police Act 1997, which concerned police interference with property. The tribunal investigates and determines complaints which allege that public authorities have used covert techniques unlawfully. It also investigates complaints against security and intelligence agencies for conduct which breaches human rights. There are presently 10 members of the tribunal, and the president is the right honourable Lord Justice Singh.

I will now address the updates to the tribunal rules. Under Section 68 of the Regulation of Investigatory Powers Act 2000, the tribunal is entitled to determine its own procedures. These proceedings are documented in the rules I am presenting here today. The rules have not changed since the tribunal was established 18 years ago. Therefore, it is now necessary that they be updated to better reflect current tribunal practice.

First, to improve the efficiency of decision-making in the tribunal, we have amended the rules to allow further functions of the tribunal to be exercised by a single member of the tribunal.

Secondly, to strengthen the power of the tribunal, we have added an explicit process for when a respondent refuses to consent to disclosure, but the tribunal considers disclosure is required.

Thirdly, the rules have been updated to make clear that the tribunal will hold open hearings, as far as is possible. For the first time, this puts in writing the tribunal’s commitment to transparency, where appropriate.

Fourthly, to assist complainants and respondents to the tribunal, we have provided details of the function of counsel to the tribunal, including by listing the functions the tribunal may require counsel to the tribunal to perform.

Finally, we have amended the rules to set out the process for the making and determination of applications to the tribunal for leave to appeal in specific circumstances, as well as determining in which court the appeal should be heard. This is in preparation for the new right of appeal, which is coming into force as a result of the Investigatory Powers Act 2016. The introduction of an appeals route will allow for greater levels of reassurance that justice has been done, as well as greater levels of transparency.

In bringing forward those updates to the tribunal rules, it was important that we consulted extensively on the proposed changes. We did that through a six-week public consultation in November 2017. Three substantive responses were received, within which 17 amendments were proposed. Officials considered the amendments carefully with colleagues across government, and five amendments were accepted and incorporated into the rules.

The updates to the rules make the work of the tribunal more transparent and efficient, as well as ensuring that the legislation accurately reflects how tribunal process and proceedings have evolved over time. I commend the rules to the House.

[Lord Rosser (Lab)]

We are not opposed to this statutory instrument, which updates the rules that govern procedures in the Investigatory Powers Tribunal, including those for a new right of appeal. The tribunal investigates and determines complaints that allege that public authorities have used covert techniques unlawfully and have infringed the right to privacy, as well as complaints against the security and intelligence agencies for conduct that breaches a wider range of human rights.

The Investigatory Powers Act 2016 introduced a right of appeal, which will be on a point of law, from decisions and determinations of the Investigatory Powers Tribunal. Leave to appeal will be granted only where the appeal raises an important issue of principle or practice, or for another compelling reason. Have there been any cases in which leave to appeal would have been granted had there been an appeals procedure, or is the appeals procedure being added because it is felt that it ought to be available rather than because there is evidence that its not being available has denied a right that ought to be there? How many cases is it anticipated might be appealed per year? How many determinations and decisions are made by the Investigatory Powers Tribunal each year, and is that number going up or down?

The tribunal rules are also being updated by this statutory instrument to provide, among other things, that further specified functions may be exercised by a single member of the tribunal. As a result of the public consultation, to which three substantive responses were received, 17 amendments were proposed, of which the Home Office accepted five. Those are listed in paragraph 10.3 of the Explanatory Memorandum. I am aware that the question was asked and answered when the rules were considered in the Commons, but it would nevertheless be helpful if the Minister could clarify for the record in our Hansard the reasons for not accepting the 12 amendments that have not been incorporated.

Could the Minister also give the reasons why it is proposed in the rules that further functions should be able to be exercised by a single member of the tribunal, and why in particular the listed functions in paragraph 7.5 of the Explanatory Memorandum? Did that proposed change arise from a proposition from the tribunal itself? If so, what reasons were advanced for going down that road, and did the tribunal ask for any other functions to be exercised by a single member to which the Government have not agreed?

[Lord Paddick (LD)]

My Lords, I thank the Minister for introducing the rules. The right to appeal from decisions and determinations of the Investigatory Powers Tribunal is welcome, although yet again the changes will not take effect in Northern Ireland until the Northern Ireland Assembly has given its consent, an ongoing cause for concern.

Extending the range of functions that can be exercised by a single member of the Investigatory Powers Tribunal appears reasonable. Overall, there is a move in the direction of more openness and transparency so far as that is in the public interest, which is to be welcomed. That includes the tribunal’s power to order disclosure, and a presumption that hearings should be held openly unless it is in the public interest for the complainant or the respondent to be excluded. It is good to see that not only was there a public consultation on the new rules, but the Government listened and acted on some of the responses, and explained the rationale for rejecting other suggestions in their response to that consultation.

Overall, we support these rules and the clear way in which they set out the process by which complaints of unlawful action by a public authority improperly using covert investigative techniques, and claims brought against the security and intelligence agencies alleging the infringement of human rights, are to be handled. We have no questions and we support the draft rules.

Misuse of Drugs Act 1971 (Amendment) Order 2018

Lord Rosser Excerpts

Wednesday 21st November 2018 Grand Committee

[Lord Paddick (LD)]

My Lords, I am very grateful to the Minister for explaining the order to us. As she has said, this puts two substances into class C of the Misuse of Drugs Act 1971, on the recommendation of the Advisory Council on the Misuse of Drugs.

We support any evidence-based scientific approach to reducing the harm caused by drugs, legal or illegal. My question is very simple. The noble Baroness talked about a very clear message being sent to the public, but why do the Government not always act on the scientific, evidence-based assessment of the ACMD?

The problem with drugs classification under the Misuse of Drugs Act is threefold. First, based on independent scientific assessment, drugs are not classified according to the potential harm that they cause. For example, GHB—gamma-hydroxybutyrate—is believed to cause a significant number of deaths—perhaps as many as several a week in the UK alone. Yet it is classified as a class C drug. Cannabis which, to my knowledge has not been the direct cause of any drug-related death, is a class B drug. Because of this, and several other misclassifications of which I could give examples, the classification of drugs under the Misuse of Drugs Act has fallen into disrepute among those who might arguably be helped most if they knew that the classification of drugs was based on how dangerous they were.

At this stage, I should point out an interest to the Committee. A former partner, who then became my best friend and who was very experienced in the use of recreational drugs, died from an accidental overdose of GHB.

Secondly, because the classification system does not reflect potential harm, only potential sentence, it has become irrelevant to most drug users. They quite simply work on the basis that the penalty is irrelevant to them as they have no intention of getting caught.

Thirdly, any drug classified under the Misuse of Drugs Act carries a heavier penalty than a new psychoactive substance covered by the Psychoactive Substances Act 2016 in that possession of a new psychoactive substance is not an offence, whereas possession of any drug classified under the Misuse of Drugs Act is an offence. This is even though some of the new psychoactive substances are more harmful than drugs classified under the Misuse of Drugs Act.

Our drugs laws are a mess, the Government’s drugs strategy is ineffective and, if we are to stop our young people dying, we need a fundamental rethink. We called for a scientific, evidence-based review of our drugs laws when we debated the Psychoactive Substances Bill—a proposition both the Conservative and Labour Benches refused to support. Therefore, I note with interest the comments of the Parliamentary Under-Secretary of State at the Home Office, Victoria Atkins, in the other place, when this order was discussed by the Tenth Delegated Legislation Committee on 12 November this year, at 6.05 pm, where she said that the Government have announced,

“an independent review of the misuse of drugs in the 21st century”. —[Official Report, Commons, Tenth Delegated Legislation Committee, 12/11/18; col. 4.]

Can the Minister provide the Committee with further details of who will be conducting this review, what their terms of reference are, and any other details that may be of interest?

[Lord Rosser (Lab)]

My Lords, I thank the Minister for explaining the purpose of the order and its provisions. We support it but I have some points that I would like to raise. As has been said, the order controls pregabalin and gabapentin as class C drugs under the Misuse of Drugs Act 1971. Currently these two substances are subject to the Psychoactive Substances Act 2016.

The two substances are used, as the Minister has said, to manage a number of disabling long-term conditions including epilepsy and general anxiety disorders. Although they have legitimate medicinal uses for which they can continue to be used, the two substances in question, when taken with other central nervous system depressants, can be the cause of serious harm including respiratory failure and, at worst, death. The Advisory Council on the Misuse of Drugs has said the two substances in question can be addictive, with the potential for illegal diversion and supply and medicinal misuse. Prescription rates have soared—the Minister gave the figures—while the number of deaths related to the two substances have also increased: just over 400 from pregabalin over the last five years and just over 200 from gabapentin.

Concerns were raised in 2014 by the Health and Social Care Board about the potential misuse of pregabalin. Apparently, in February 2015 Her Majesty’s Inspectorate of Prisons reported concerns of health staff in prisons that a high number of prisoners were being prescribed the drugs without a thorough assessment of their needs, and in a way that did not meet best-practice guidelines. Does that mean prisoners in prison being prescribed the drugs without a thorough assessment of their needs or prisoners prior to their coming into prisons being prescribed the drugs in the wrong way? Either way, the question must be how that has been allowed to happen. What will the planned guidance and communication say to address the issue of drugs of this kind being prescribed without a thorough assessment of the patient’s needs?

For how many years have these two substances been available? What is it that starts the procedure for the control of such substances as class C drugs as per this order? With concerns being raised in 2014, it does not seem to be a particularly quick process. Who or what organisation makes the initial move, and what is then the procedure for getting the matter before the Advisory Council on the Misuse of Drugs? Or is it the advisory council that has to take the initiative in the first instance?

Paragraph 12.2 of the Explanatory Memorandum states:

“Enforcement of offences in relation to drugs controlled by the Order will be subsumed into the overall enforcement response to controlled drugs”.


That statement is in marked contrast to the impact of the order on pharmacies, GPs and the NHS as a whole, for which precise figures have been given in the Explanatory Memorandum with regard to the additional cost. So what will the additional cost be of implementing this order to the police, the court system and the Prison and Probation Service of enforcing these new offences? What is the estimated number of new offences that will be committed each year as a result of controlling these two substances as class C drugs? Is the reality for our overstretched police that either they will not arrest many people for offences related to those two substances or, if they do, it will be at the expense of investigating, enforcing and arresting people for other offences? Is that what,

“subsumed into the overall enforcement response to controlled drugs”,

really means? If not, what does that phrase mean?

--- Later in debate ---

[Baroness Williams of Trafford]

I thank both noble Lords for their points. The noble Lord, Lord Paddick, asked about the review of drugs. As he said, the Home Secretary announced on 2 October a major, independently led review of drug misuse. While the review will obviously not cover prescription drugs, it will look at a wide range of issues, including the system of support and enforcement around drug misuse, to inform our thinking about what more can be done to tackle drug harms. It will make sure that we know as much as possible about who drug users are, what they are taking and how often, so that law enforcement agencies and the police are able effectively to target and prevent the drug-related causes of violent crime. We will shortly set out the terms of reference and the name of the reviewer, which I cannot give at this point. The review will inform our thinking and help shape what more we can do to tackle drugs and drug harms.

The noble Lord, Lord Rosser, asked whether the drugs are prescribed before people come into prisons or while they are there. I do not have that answer now, but whether the drugs are used before prison or while in prison, it is a problem in the prison estate. I will provide him with a breakdown of where we think the prescribing occurs.

The noble Lord asked whether the Government had asked the ACMD or vice versa. The Government can ask the ACMD for its advice, but the ACMD can also ask the Government to instigate an assessment of drug scheduling. On the additional cost, the financial implications are set out in the impact assessment. The cost in year 1 to pharmacies is estimated to be about £97,000 and the cost to the CPS £172,000. There is an additional dispensing cost to the NHS which is estimated at present value to be £53.7 million over 10 years. That has obvious implications for GPs. Officials will meet the necessary bodies to outline the effect on GPs’ practices of the rescheduling of both drugs.

[Lord Rosser]

The issue was not that I was not aware of the costs on GPs, pharmacies and the NHS, because they are spelled out in great detail in the document, even telling us what is the average pay per hour, working out that it would require five minutes for people to find out how to operate the new system and working out the cost of five minutes at £20 or £30 per hour—whatever the figure is. My point is that there is no reference to the cost of the order on the police, the criminal justice service, the probation service or the Prison Service—people can be sent to prison for up to two years. It just says that the cost will be subsumed into the overall cost of dealing with controlled drugs. I find it odd that the Government can set out the calculations in enormous detail of what it will cost pharmacies, GPs and the NHS but remain utterly silent on what the cost will be to the criminal justice system.

[Baroness Williams of Trafford]

I outlined the projected costs to the CPS in year one, but the noble Lord asks a reasonable question and I will try to get him an answer. As he says, the number of organisations affected is stated in the impact assessment.

The noble Lord, Lord Paddick, asked me about the exemption from the 1971 regulations. If I may, I shall write to him. Oh, it was the noble Lord, Lord Rosser.

[Lord Rosser]

My point was that small businesses appear to have been exempt from the 1973 regulations in relation to the provision of a safe or appropriate cabinet. I shall stand corrected if I have got it wrong, but I understand that that was not what the advisory committee recommended. Why has the advisory committee’s recommendation been ignored in this case and what are the implications of not applying the 1973 regulations in relation to storage in safes and cabinets?

[Baroness Williams of Trafford]

Again, that is a reasonable point—and I now have the answer. We accepted the ACMD advice in principle, subject to consultation.

[Lord Rosser]

But am I nevertheless correct in saying that the ACMD did not say that the 1973 regulations should not apply? I am well aware that there is consultation; the document says that small businesses were dead against the regulations being applied, which may not be a surprise. I am asking about the implications of not applying those 1973 regulations, bearing in mind that, as I understand it, the ACMD did not say that they should not apply?

[Baroness Williams of Trafford]

I go back to the consultation. Following the provisions of this option will mean that, although the drugs will be subject to auditing requirements, there will be no requirement to store them in controlled drugs safes—as the noble Lord said. Apparently, a significant number of respondents did not think that organisations could accommodate the drugs in existing safes, and expressed concern that this would result in substantial additional costs associated with buying and installing such safes.

[Lord Rosser]

I thank the noble Baroness for her promise to write to me, but these regulations about storage were drawn up with a purpose, to prevent something happening. It is now being said that they will not apply, although, as I understand it, that is not what the ACMD recommended. What is the downside of not applying the regulations, which were presumably made with a purpose? Clearly, the people most against them being applied were the small businesses that would be affected. Can I be told what the downside of not applying them is? Why was the recommendation of the ACMD not followed? I understand that there was consultation, I understand that there were groups which were against that, but perhaps they had a vested interest.

[Baroness Williams of Trafford]

I think that the issue is slightly more complex than it appears at face value. If the noble Lord will oblige me, I will write to him on this point but on that note, I beg to move.

Motion agreed.

Police, Fire and Crime Commissioner for North Yorkshire (Fire and Rescue Authority) Order 2018

Lord Rosser Excerpts

Wednesday 21st November 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I strongly support my noble friend Lady Pinnock. The whole reason for establishing police and crime commissioners was supposed to be to increase the democratic accountability of the police service. In fact, as we have heard, the only way that PCCs can effectively be held to account is through the ballot box, and then only at four-yearly intervals. As we know, in most parts of the country, votes for the PCC are usually cast along established party-political lines and are not a referendum on the performance of the PCC at all.

As my noble friend Lady Pinnock said, police and crime panels, allegedly designed to hold police and crime commissioners to account, are in fact a toothless Singapura, let alone a toothless tiger, as the noble Lord, Lord Harris of Haringey, said. My noble friend Lady Harris of Richmond provided an example from North Yorkshire of how powerless the panels are.

This supposed increase in local democratic accountability of the police is being extended so that PCCs can take over fire and rescue services—something that we on these Benches opposed when the legislation came before this House. PCCs already have a very big job on their hands, being responsible not only for the delivery of policing services in their area but for commissioning and co-ordinating other services to reduce crime and disorder. The Government may be in denial about it, but the level of crime and disorder is increasing, and violent crime in particular is reaching alarming levels across the country. PCCs already have enough on their plate.

This so-called experiment in local democracy can result, as it has here, in local democratically elected representatives of all parties—who have wider responsibility for the delivery of local services, not just the police service, and have the “big picture” in terms of their local areas and the funding of all local services—being totally ignored. The very body that is supposed to hold the local PCC to account also opposes what this PCC proposes to do. How can the Government maintain that the PCC taking over the fire and rescue service in North Yorkshire is in the best interests of local people when the benefits are questionable, or meagre, as my noble friend said, and the constituent councils in North Yorkshire—the county council, City of York Council, the North Yorkshire police and crime panel and the North Yorkshire Fire and Rescue Authority—all oppose this move?

Whether it is the police service or the fire and rescue service, multi-party, multi-member authorities will always be able to take a more balanced, more accountable and more democratic approach than a sole individual, who, among other things, can raise the police precept locally without any consideration of the overall burden on local council tax payers and without taking any account of other pressing local priorities. The economic, efficiency and effectiveness benefits can nearly always be secured by the emergency services more collaborating without the PCC taking over control of the fire and rescue service. This is all pain and no gain. This move is very much to be regretted.

[Lord Rosser (Lab)]

My Lords, we agree with the terms of the regret Motion. I do not wish to make any specific comments about the police and crime commissioner concerned since I know nothing about the police and crime commissioner in that area. Suffice it to say that my information too, not surprisingly, is that the North Yorkshire police and crime panel has rejected proposals for the commissioner to take on responsibility for both the fire service and the police—or at least what at that time were proposals—and that the panel had urged the commissioner to reconsider what she was seeking in favour of a model that would retain the current fire authority and give the commissioner a voting place at the table. Likewise, as has already been said most eloquently, the local authorities and the fire and rescue authority expressed a clear preference for the representation model. Indeed, the information that I have received—to put it diplomatically—is that the police and crime panel has a difference of view with the police and crime commissioner over the running of her office in relation to issues of bullying and a hostile environment.

I make no comment on the rights or wrongs of it because I personally know nothing about it. I was told that the police and crime panel intended to write to the Home Office to highlight its concerns. I do not know whether it has done so or whether the Home Office has received any such letter. Clearly there is not a very happy relationship between the police and crime commissioner and the police and crime panel in North Yorkshire. One would have thought that, to get to the bottom of it, the Secretary of State would have wanted to know rather more than perhaps he does about working relationships between the two organisations, since that surely must be a consideration in whether you are going to extend the power and authority of the police and crime commissioner. Maybe the Minister will tell us that the Home Secretary has already done that, and that he is satisfied that the police and crime commissioner is in the right and that the police and crime panel has got the wrong end of the stick; I will wait and see what the Minister has to say on that.

I refer to the independent assessment on which the judgment was made that the criteria of economy, efficiency and effectiveness have been met, and indeed of public safety. On economy, in the section headed “Our Overall Assessment”, the report says:

“Our overall view on economy is that it has received little attention in the LBC”—


the local business case—

“and there is an absence of quantified benefits in relation to any reduced costs of inputs”.

Later in the paragraph, having referred to other issues, it goes on to say:

“On that basis we are unable to reach an objective conclusion on whether the proposal will meet the specific criterion of increased economy”.


Then, looking at the issue of efficiency, the independent assessment says:

“As we noted above nearly all of the savings in the LBC arise from efficiency savings”.


I am not reading out the full paragraph, but it states that:

“The only savings which can be attributed directly to the Governance model are those arising from changes in the structure of the OPCC and the FRA”—


the office of the police and crime commissioner and the fire and rescue authority—

“i.e. those savings referred to as Direct Governance Benefit”,

in the local business plan.

As has already been said by the noble Baroness, Lady Pinnock, the report goes on to say that:

“This leads to a net cost reduction of £36K p.a. from 2019/20 or a total of £204K, net of implementation costs, over the 10 year period of the LBC”.


As has already been said, the independent assessment says:

“However, the savings directly attributable to the change are modest”.


That is probably one of the understatements of the year, if you are talking about savings as low as that; and it is based on the figures that have been put forward by the police and crime commissioner and the assumptions being made proving to be correct.

Turning to effectiveness, the report says:

“Proving a direct link between the governance model”—


which is what the police and crime commissioner wants—

“and effectiveness is a subjective process”.

It ends—it is debatable whether you think this is an endorsement—by saying:

“On balance our view is that the proposed change in governance has the potential”—


I emphasise “potential”—

“to have a positive impact on effectiveness”.

In other words, the independent assessment could not produce the evidence that the change would have a positive impact on effectiveness; it would have only the potential to have a positive impact on effectiveness.

In the next paragraph—I am not reading out the whole paragraph—the assessment says:

“Having reached that conclusion we would add that there is no overwhelming case for change and that most of the proposed changes could be achieved under the other three options, subject to the willingness of all the stakeholders to work together”.


The assessors were also asked to comment, I think, on the issue of public safety, and their comment was,

“this is a very subjective area to assess”.

They concluded by saying:

“On that basis we have concluded that there is no increased risk to public safety due to the proposed change in governance”—


that is a relief—

“and that there may be benefits in the future”.

If that is a ringing endorsement of the PCC’s plan, I think the Secretary of State has got it all wrong, because, as I understand it, it is on the basis of that independent assessment that he has agreed the proposal. Subject to what the Minister may say in response, he does not seem to have taken much account of working relationships—for example, the PCC’s relationship with her police and crime panel, and perhaps with other people as well, including her own staff.

In concluding, I simply say that if the independent assessment is deemed sufficient to meet the criteria of economy, efficiency and effectiveness, it is very unlikely that any future proposal from a PCC to take over a fire and rescue authority will ever be anything other than approved by this Secretary of State.

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

My Lords, I thank all noble Lords who have taken part in this debate, particularly the noble Baroness, Lady Pinnock, who secured it. As noble Lords will know, the Policing and Crime Act 2017 helps to make collaboration far more commonplace than it was hitherto. It placed a new duty on the police, fire and rescue and emergency ambulance services to keep collaboration opportunities under review and, where it is in the interest of their efficiency and effectiveness, to put those opportunities into practice. Let us not forget the rationale for a broad and non-prescriptive duty. It is for those with clear, local accountability to accelerate local emergency service collaboration.

As noble Lords will be aware, the Act also enables PCCs to take responsibility for the governance of fire and rescue services to drive that greater collaboration between policing and fire, which is what we are discussing this evening. Sir Ken Knight’s 2013 review of the fire and rescue service concluded that PCCs,

“could clarify accountability arrangements and ensure more direct visibility to the electorate”.

His findings were clear. The patchiness of collaboration across the country—I can attest to that myself—will not begin to change consistently without more joined-up and accountable leadership.

The directly accountable leadership of PCCs can play a critical role in securing better commissioning and delivery of emergency services at a local level. I pay tribute to the noble Lord, Lord Bach, for the work that he is doing to this end, and of course to Greater Manchester and the excellent work done in that area.

I have visited the police authority and seen the current PCC in action and I can certainly attest to the more visible model that PCCs represent. They are directly elected by the communities they serve, and it is the public who hold PCCs to account in the most powerful way—at the ballot box. I know the noble Baroness, Lady Pinnock, questioned the visibility of the PCC but, even though I was on a police authority, I am not sure I could name every member. However, everyone in Greater Manchester knows the PCC.

Last month marked a year since the first police, fire and crime commissioner was established in Essex. Roger Hirst set out a raft measures—

--- Later in debate ---

[Baroness Williams of Trafford]

I apologise to the noble Lord if I am conflating or confusing combined authorities with the PCC role. He certainly was very vociferous on the role of scrutiny in terms of the combined authority.

The noble Lord, Lord Harris of Haringey, asked about the Government’s view on police and fire mergers in terms of the wider role; he referred to justice. I shall go back and ask what future plans are, because I confess that at this point I do not have up-to-date information on that.

Noble Lords asked about claims of bullying and whether the Home Office had received any representation. I confirm that the PCP in North Yorkshire has written to the Policing and Fire Minister regarding those allegations of bullying and harassment levelled at the PCC from members of her own staff. I also confirm that broader questions regarding the scrutiny role of PCPs have surfaced. PCC Mulligan has apologised for the impact that her behaviour may have had on the complainant and is already addressing many of the areas that the panel identified in its recent report.

[Lord Rosser]

I am talking about this in general terms. Is the ability of a PCC to work with those around her—for example, the police and crime panel and her own staff—a factor that is taken into account in considering whether she or he should also have responsibility for the fire and rescue service?

Crime (Overseas Production Orders) Bill [HL]

Lord Rosser Excerpts

3rd reading (Hansard): House of Lords
Tuesday 20th November 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, in moving this Motion I thank all noble Lords who have participated in debate on the Bill, in particular the noble Lords, Lord Rosser and Lord Kennedy, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Of course we can never do anything without our fabulous Bill team, who have been on hand to explain some quite complex and technical matters. I always think that your Lordships’ House improves a Bill as it passes to the other place, and I hope that it will agree when it has time to consider it. Thank you.

[Lord Rosser (Lab)]

I too take this opportunity to add to what the Minister has said. Despite the reality that the Bill has not exactly held this House in rapt attention, judging by the number of people who decided to participate in our debates, I thank the Minister, the noble Baroness, Lady Manzoor, and the Bill team for their help and their willingness to meet to discuss the important issues that have been raised during the passage of the Bill. I also thank the members of our team who have provided such invaluable and vital support to me and to my noble friend Lord Kennedy of Southwark.

[Lord Paddick (LD)]

My Lords, I too thank the Minister. I do not know whether I am speaking out of turn in saying that I think at times she has shared some of our concerns over the implications of the Bill, if not over the Bill itself. I thank the Bill team for engaging with us so that we got a better understanding of the formulation of the treaty, the process of negotiating the treaty and what the possible implications of that might be. Clearly we are now alerted to the fact that both Houses need to be very concerned in scrutinising any treaty that is developed that this Bill relies on. I also thank my noble friend Lady Hamwee, without whom I would be lost.

Police: Serious and Violent Crime

Lord Rosser Excerpts

Thursday 15th November 2018 Lords Chamber

[Lord Rosser (Lab)]

This is the second Question on policing today and it is the Home Office that has a responsibility for assessing how much funding police forces need. In the light of the 11% to 25% range—in real percentage terms—in funding reductions experienced by police forces between 2010-11 and 2018-19, rising violent crime, fewer arrests, high numbers of crimes not being investigated, less neighbourhood policing, fewer police officers and declining public satisfaction, is it still the Government’s assessment that police forces have sufficient funding in the current financial year to meet the legitimate demand for police services? Is the answer yes or no?

[Baroness Williams of Trafford]

The Government’s assessment at this point in time—I refer again to my right honourable friend the Home Secretary and my honourable friend the Policing Minister—is that the police have had huge increases in demand. The pattern of crime is changing, as the noble Lord pointed out. Knife crime is a particular issue in London and county lines are spreading the problem across forces. I know that the Home Secretary and the Policing Minister recognise this and are looking to work on the funding picture.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have some small questions for the Minister, and I hope she has been given notice of them in her brief—I contacted the Bill team yesterday. I think she has largely answered one of them, but I will ask it anyway. In her Amendment 73 and elsewhere, there is provision for a cut-off to the period for representations. I understand the need for that. Is there a timetable for the rest of the process? This is likely to be significant to the passenger, the affected party.

Secondly, in Amendment 76 and other amendments—the Minister has just mentioned this—what is an example of what is not “reasonably practicable”? She mentioned the possible difficulty of getting in touch with the individual. Again, I understand that. Does the term “reasonably practicable” go to that sort of thing? In other words, is it on the part of the person trying to get in touch, or is it looked at from the point of view of the passenger? Destruction of an article or conditions as to the use of the article are likely to be significant in this situation.

Thirdly, I have a similar question about the urgency condition in Amendment 77. Who assesses what is urgent? Is it the Home Office or the commissioner, and is it urgency in the eyes of the passenger? If the Minister can help to flesh out some of those queries, I will be grateful.

[Lord Rosser (Lab)]

Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?

[Baroness Williams of Trafford]

My Lords, the kind of situation in which we can expect the urgency provisions to be used possibly goes to the question asked by the noble Lord, Lord Rosser, about how frequently they are used. It is difficult for me to talk about the average frequency in any week, year or other given timescale, but clearly there is a spike nature to some of these events. Therefore, I hope that the noble Lord will accept that I cannot give a definitive answer to his question. However, basically the provisions will be used to disrupt a live threat—for example, where a hostile agent tries to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In the aftermath of something like the Salisbury event, Schedule 3 powers would provide the police with additional tools to stop and question persons with potential links to a hostile state or its actors who might have knowledge of or involvement in the attack. In such a scenario, it would be critical to analyse their devices and material at speed in order to understand the extent to which they were engaged in hostile activity.

The noble Baroness, Lady Hamwee, talked about the timeframe. Obviously, the urgency procedures would be used only where there was an immediate risk of death or significant injury or of a hostile act being carried out. In such a case, the police must be able to act with immediate effect. However, on the question of whether we could have done it the other way round, with a prior authorisation procedure being put in place, the answer is that that would still take some days. I hope that that answers the question.

The point was made that the timeframe for the urgency process—that is, within 24 hours—makes it very difficult to make representations to the commissioner. I was asked whether that is enough time or whether it should be longer. The timescales for the urgency process aim to strike a balance between giving the property owner enough time to make representations and ensure that the police are not able to use the property without judicial authorisation with the decision having to be taken by the commissioner within three days, and, by the same token, conceding that it is likely the property owner will want a decision to be taken as quickly as possible to prevent the police using their property without a decision by the commissioner. The draft Schedule 3 code of practice, which is available online, makes it clear that the examining officer must provide a notice that will explain to the property owner that they are invited to make representations to the commissioner, including contact details and the associated timescales.

Did the noble Baroness ask me what happens if the property owner cannot be contacted?

[Baroness Williams of Trafford]

She did, and I have the answer here—as if by magic. Paragraph 63 of the draft Schedule 3 code of practice is clear that, where the examining officer retains a person’s property beyond the period of examination, the officer should ask the person how they would prefer to be contacted regarding the status or return of their property. The officer will typically seek to acquire the phone number, email address or postal address of the examinee. However, under the urgency process, the examining officer would attempt to use the details provided by the examinee to make contact and to provide the information. This would typically include attempting to call the person a number of times, as well as sending them information by recorded post and email. If the person is at the known UK address then the officer from the local force could be tasked to attend the address to deliver the relevant information in person. Obviously, however, it would not be reasonably practicable for the police to take this approach on every occasion or where the person is abroad. It would not be reasonably practicable for the examining officer to make contact with the person where they have provided false contact details. I hope that satisfies the noble Baroness.

[Lord Rosser]

I appreciate that the Government cannot stand at the Dispatch Box and announce that this will be used X number of times a week, a month or a year—of course I understand that. But is the provision there because of previous experience that there is a gap in the arrangements, for which we have had to pay a price because we have not been able to enact the procedure, or is it there because there is a feeling that there might arise a need for such a procedure in the future?

[Baroness Williams of Trafford]

There are several answers to that. Obviously, the Terrorism Act 2000 needs updating. The Salisbury attack showed us the need to update our laws in this regard, and clearly the way that technology and other things have moved on creates a gap in our abilities because they have not been provided for in previous legislation.

--- Later in debate ---

[Lord Rosser]

We too are obviously concerned about the right to access a solicitor. My name, and that of my noble friend Lord Kennedy, is attached to all the amendments in this group, but the one I wish to speak to in particular is Amendment 86. As the others do, this amendment refers to legal professional privilege and to a person’s ability to consult a lawyer in private in relation to stops at the border. As has been said, there is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given.

Concerns were raised by the Government when the matter was discussed in the Commons. The first argument advanced by the Government was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. The Government further argued that that person might notify a lawyer who would not adhere to the professional standards that we would expect and who might pass some information on. The third argument advanced was that of a lawyer inadvertently passing on a piece of information. That appears to be the guts of the Government’s argument in favour of what is in the Bill at present.

As the Minister will know, the shadow Minister for Security in the Commons put forward a proposition that there should be a panel of lawyers, properly regulated, he said, by the Solicitors Regulation Authority and the Law Society. I have subsequently found out that not necessarily all lawyers hold those organisations in complete awe, but the principle was one of having a panel of lawyers that was properly regulated. In his response in the Commons, the Minister for Security said he thought that the suggestion was a good one and promised to take it away and look at it.

I hope that, in the light of that, we will be able to make some progress on this issue and that the Minister, on behalf of the Government, will be able to indicate movement—a great deal of movement, I hope—on the Government’s part towards the objective of ensuring a right to legal advice, to access a solicitor and to do so in private.

--- Later in debate ---

Moved by

[Lord Rosser]

63A: Schedule 3, page 38, line 35, at end insert—
“(3A) In order to inform a decision on whether to select a person for questioning under this paragraph an officer may approach a person and ask questions for screening purposes. (3B) Screening under sub-paragraph (3A) may include, but is not limited to—(a) asking questions to establish the identity, provenance and destination of a person;(b) asking questions to establish the method of travel and purpose of travel of a person;(c) scrutiny of a person’s travel document;(d) a comparison of the holder against the image contained in the document;(e) requesting additional documents from the person relevant to screening;(f) checking personal information against records where there is no significant additional delay.(3C) It is not an offence for a person to refuse to answer questions asked for screening purposes or to refuse to otherwise engage with officers in the screening process. (3D) An officer must inform any person they approach for screening purposes that they are not obliged to answer questions or engage with the officer on the screening process.(3E) An examining officer must not exercise powers under this Schedule, with the exception of the power to approach a person for screening purposes under sub-paragraph (3A), in respect of any person unless that person has been notified that an examination under this Schedule has commenced.”

[Lord Rosser]

My Lords, as has been said, the Bill provides for a person to be questioned and detained under Schedule 3 powers and makes it an offence to refuse to answer questions in examinations. The draft code of guidance, which we have now seen, recognises that there may be a preliminary stage of questioning during which people may be screened before an officer chooses to officially question them under the schedule. During screening, a person is not required to answer a question they do not want to and the code of practice states that a person must be told when the screening ends and an official examination begins. The purpose of this amendment is simply to put the screening process, the right of a person not to answer questions and, equally importantly, the right of a person to be told when screening ends and questioning begins on to the face of the Bill.

The screening does not appear to be an insignificant process. The draft code of practice, which we have sought to enshrine in the amendment, sets out the kinds of questions that can be asked and the issues that can be raised during the screening process. It states that there is no requirement for officers to keep a record of a screening interaction unless the person is subsequently selected for a Schedule 3 examination. There will be circumstances in which there is a requirement to make a record of a screening interaction. Indeed, it also says that while the screening of persons should take only a few minutes—I do not know what “a few minutes” is in this context—it states:

“If it appears that this period will take significantly longer, the examining officer must conclude the screening process and either commence a Schedule 3 examination or notify the person that they have no further questions”.


Again, in a situation where they run out of time and decide to commence a Schedule 3 examination, a record of the screening interaction must be made.

It is not clear to us at the moment why no reference to this process has appeared in the Bill. One purpose of the amendment is to get an answer to that question since it would appear to be a part of the process under Schedule 3, which we have been discussing. I beg to move.

[Lord Anderson of Ipswich]

My Lords, for every person who is subject to a Schedule 7 examination, as I often used to report, some 10 to 20 others are asked light-touch screening questions on a consensual basis, as a result of which it is determined that a Schedule 7 examination is not necessary. The prevalence of screening questions may explain the discrepancy between the low and rapidly declining incidence of Schedule 7 examinations, on the one hand—I think they are running at around a quarter of the level they were when the noble Lord, Lord Carlile, handed over the post of independent reviewer to me—and, on the other hand, the perception of some people that they are stopped on a routine basis when they travel abroad. I reported in 2016 the example of a security-cleared government lawyer with a Muslim-sounding name who had been stopped by police on each of the last five occasions that he had left the country and on the majority of occasions when he re-entered it. On each occasion, as he acknowledged, he was stopped for screening questions only. Because screening questions are not recorded, there was of course no way of alerting ports officers of the previous fruitless stops.

I agree with the noble Lord, Lord Rosser, that the parameters applicable to screening questions need to be clearly set out under Schedule 3 to the Bill, as under Schedule 7. The draft code of practice, which I thank the Minister for providing well in advance, goes a long way towards doing that, although I am not sure that it cracks all the old chestnuts, one of them being how, if at all, one can administer screening questions to a coachload of people who are on their way to a possibly troubled part of the world.

As to whether screening questions should go into statute, the noble Lord is not alone in his provisional view. Senior ports officers have said to me—as I have recorded in the past—that if screening questions appeared in Schedule 7, we would all know where we stood. Against that, one thinks of the provisions in PACE Code C relating to “voluntary interviews”, which are not enshrined in the Police and Criminal Evidence Act 1984, no doubt because of the moral and social duty, as it has been described by the courts, that every citizen has to give voluntary assistance to the police. I approach this issue with an open mind and look forward to hearing what the Minister has to say. In particular, can she tell us whether she has consulted the Investigatory Powers Commissioner, who is to have oversight of Schedule 3 and, if so, what he had to say, because I suspect that his view may help to inform mine?

--- Later in debate ---

[Baroness Williams of Trafford]

I thank noble Lords for their points on this amendment. I start by saying to the noble Lord, Lord Anderson, that the IPC has been consulted throughout the drafting of the code.

The interactions between noble Lords probably go to the root of the amendment proposed by the noble Lord, Lord Rosser. The section on screening outlined in the Schedule 3 code, which mirrors the existing guidance for the equivalent CT powers, is there to provide ports officers with clarity on the distinction between questions that can be asked by police officers in the ordinary course of their duties with a view to deciding whether to examine someone and questions that are permissible only once a Schedule 3 examination has commenced; that is, those questions designed to elicit information to enable an officer to determine whether the person is or has been concerned in hostile activity.

We have all come across police officers as we go about our daily lives and are used to seeing them on local streets and in tourist hotspots or protecting our national infrastructure. Wherever officers are on the ground, it is reasonable to expect them to interact with the public. It is not only a reasonable expectation but a vital aspect of front-line policing.

Such interactions will vary and depend on the specific purposes. They may range from polite conversation between an officer and a member of the public to a situation where an officer wants to query why a person is acting in a certain way or why they are present in a certain place. In such circumstances, police officers do not rely on specific powers of questioning; rather, they are simply engaging members of the public during their ordinary duties, as the noble Lord, Lord Carlile, pointed out. It is no different when officers are stationed at UK ports.

It would be unusual if officers did not interact with the public in this way. It would be even more unusual if front-line officers were not able to use those interactions to determine whether any further action was needed. It is unfortunate that, in trying to clarify this distinction between what would constitute questioning or interaction during ordinary police duties and questioning that can take place only once a Schedule 3 examination has commenced, the language and intention of the code have somehow been misunderstood.

Let me be clear: what is referred to as “screening” in the draft code is not a prescribed process or procedure that ports officers must adopt before selecting a person for examination. It is a clarification of what questions can be asked, if appropriate, prior to selection for examination, as against the questions that can be asked only during an examination.

It is quite possible that a ports officer will speak to members of the public at a UK port in the course of their duties with no intention of selecting them for an examination of any kind. Of course, the person’s behaviour might lead the officer to consider use of a police power, but Amendment 63A could have the unfortunate implication that, in other contexts and absent specific statutory powers, officers are unable to talk to the public or request to see their documents in the ordinary course of their duties to determine whether they need to take the further step of invoking their legal powers. It would define such questioning as being part of the Schedule 3 examination itself, rather than something that takes place before an examination. All that said, even though I do not agree with the amendment, we will consider whether further clarity is needed in the code before formally laying it before Parliament for a debate and approval by both Houses. I hope that, with that assurance, the noble Lord will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that response and all other noble Lords who have participated in this brief debate. I am grateful to the Minister for saying, if I understood her correctly, that there will be further reflection on this issue. I accept that she has not, on behalf of the Government, accepted the amendment. I do not know whether it is the listing of potential questions that is the cause of the difficulty. If it is, one solution might simply be to make reference to the fact that there may be a screening process, without laying down specifically what the questions are that may or may not be asked as part of it, since most of the debate seems to have centred on listing the specific questions. These, of course, were lifted straight from the code of practice.

[Baroness Williams of Trafford]

I think that the noble Lord, Lord Carlile, put it correctly. Rather than prescribe a list of questions, I am seeking to get clarity within the code in due course.

[Lord Rosser]

I take it from that that the Minister will be coming back to let us know the outcome. On that basis, I thank the Minister for her response and I beg leave to withdraw the amendment.

Amendment 63A withdrawn.

--- Later in debate ---

[Lord Paddick]

My Lords, I do not want to add to the comments that I made in the debate on whether Clause 21 and Schedule 3 should stand part of the Bill, which echoed the comments of other noble, and noble and learned, Lords.

As the noble Lord, Lord Anderson of Ipswich, has said, regulations that we recently considered that were made under the Investigatory Powers Act radically redefined “serious crime” to mean offences which carry a minimum sentence of 12 months’ imprisonment but also all offences involving communication or the invasion of privacy. The Government are quite capable of redefining—and in fact have redefined—serious crime to fit more precisely the powers referred to in different pieces of legislation, even regulations made under a piece of legislation in which the definition of serious crime is different. So I do not agree with the noble Baroness, Lady Manningham-Buller, who mentioned earlier that it would not capture Official Secrets Act offences, because the Government, as has been suggested, can change, have changed and could change the definition of serious crime in relation to Schedule 3 powers.

[Lord Rosser]

I will be very brief indeed. We will listen with interest to what the Government have to say in response to the amendment moved by the noble Lord, Lord Anderson of Ipswich, but—obviously, subject to what the Government say—it seems to us to have considerable merit.

[Baroness Williams of Trafford]

My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.

It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.

For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,

“for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.

A person is engaged in hostile activity if they are,

“concerned in the commission, preparation or instigation of a hostile act that is or may be … carried out for, or on behalf of, a State other than the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.

Under this schedule, a hostile act is defined as an act that,

“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.

By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,

“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.

Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.

There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.

As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.

It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.

Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.

If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of, a state other than the United Kingdom.

I also recognise the concerns about the term,

“economic well-being of the United Kingdom”.

As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.

I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.

--- Later in debate ---

Moved by

[Lord Rosser]

67ZA: Schedule 3, page 39, line 7, at end insert—
“( ) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.( ) The Commissioner must make an annual report on the use of powers under this paragraph in the border area.”

[Lord Rosser]

As has been said on more than one occasion, Schedule 3 deals with border security and the power to stop, question and detain and states:

“An examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.


It goes on to say:

“An examining officer may exercise the powers … whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.


There does not need to be reasonable suspicion. That is a very considerable power and safeguards are needed to ensure that it is used in a necessary and proportionate manner. Amendment 67ZA seeks to have such a safeguard in relation to this power by providing that the Investigatory Powers Commissioner,

“must be informed when a person is stopped”,

and,

“make an annual report on the use of”,

this power.

In the schedule, there is provision for the Investigatory Powers Commissioner to keep under review the operation of the many provisions in the schedule and make an annual report to the Secretary of State about the outcome of the review. In the Commons, the Government were asked whether in carrying out the review process and producing the report—under Part 6 of Schedule 3 —the commissioner would be aware of every stop that had taken place. Our amendment provides that the commissioner must be informed of such stops. The initial reply from the Minister in the Commons was “Yes”, but he then went on to say:

“Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power … to investigate those stops while doing the review”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 5/7/18; col. 190.]


That appears to be a qualification of the initial answer of yes. The information that the commissioner will get is the numbers—perhaps total numbers—but that may apparently be some time after individuals have been stopped.

This amendment provides that the commissioner must be informed when a person is stopped. Will the Investigatory Powers Commissioner be informed when people are stopped, questioned and detained or only given numbers at a frequency that is unstated? Will the commissioner be told why people have been stopped, questioned and detained, or will he or she have to inquire about that when given overall numbers at some later stage?

As I understand it, the Government’s argument appears to have been that the Terrorism Act 2000 powers on counterterrorism have been used to stop, question and detain people where there is an issue of potential hostile activity, and that the Bill simply regularises what is already happening. If I have understood the Government’s argument, does that mean that they expect no increase in the number of people being stopped, questioned and detained at our borders, particularly at the sensitive border in Ireland between north and south? One could put that interpretation on it, if it is correct that the Government are saying that the Bill simply regularises something that has been happening under the powers in the Terrorism Act 2000. But if not, and the Government expect an increase in the numbers of people being stopped as a result of this provision, on what scale is that increase expected to be? I beg to move.

[Baroness Hamwee]

My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.

The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.

Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.

The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.

The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.

I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that response and the noble Baroness, Lady Hamwee, for her contribution to this brief debate. The point I was seeking to clarify is that, as I understand it, the Government have maintained that sometimes the powers under Schedule 7 to the Terrorism Act 2000 were being used to stop people who, it might be argued, are involved in hostile activity. The point that I was trying to confirm is whether the Government feel that they are simply regularising what happened under another Act, or whether we are talking about a new group of people who may be stopped and detained. I gather from what the Minister said that we are, and that we are not talking about people who, rightly or wrongly, may have been stopped and detained under the Terrorism Act on the basis that it was counterterrorism.

I assume that the Minister is once again going to say that she is unable to respond, but are we expecting any significant increase in the number of people being stopped and detained? She said that they will be people who are not being stopped and detained at present under other powers when perhaps those powers should not have been used, and that these will be new people. Is that the situation? Is it likely to be an extensive number? She said that it would be very difficult for the commissioner to be advised every time somebody was stopped, which suggests that there will be significant numbers of people.

[Baroness Williams of Trafford]

Mercifully for the UK public, the number of people involved in hostile state activity is low. The commissioner will have access to all the reports. We are expecting far fewer stops than under Schedule 7. I think I expressed that, but in a different way. We do not expect a plethora of new cases. The IPC can have access to all the records, but he does not have to be informed every time. He will have all the information he needs.

[Lord Rosser]

I thank the Minister for that response. I want to reflect on what has been said. In the meantime, I beg leave to withdraw the amendment.

Amendment 67ZA withdrawn.

--- Later in debate ---

[Baroness Jones of Moulsecoomb]

My Lords, I spoke earlier in Committee about my opposition to the whole of Schedule 3. I shall now speak to my Amendments 68 and 69. I declare an interest: I have a journalist daughter and know many of her friends, and they could be very adversely affected by this part of the Bill because it is about the protection of journalistic material.

Because Schedule 3 of the Bill allows border officials to question, search and detain anyone at the border without any suspicion whatever, people carrying journalistic or legally privileged material might want to refuse to hand over that material without committing a criminal offence. Without Amendment 68, journalists and lawyers could be forced to hand over sensitive and confidential material at the border. This surely cannot be the Government’s intention in drafting the Bill, and it surely will not be Parliament’s will to allow such a scheme to become law.

Without Amendment 69, journalistic material confiscated at the border, including information about confidential sources, could be exposed in open court as evidence. This would be an enormous erosion of press freedom and the sacrosanct duty of journalists to protect their sources. It would have a chilling effect on individuals coming forward with information which is in the public interest. I have myself been approached by whistleblowers who are well aware of the severe consequences that await them. We must not add to the burden that deters people from coming forward with information about corrupt practices or wrongdoing.

As drafted, Schedule 3 would put sources in danger of losing their job, their liberty or even their life. The Government would never allow their confidential intelligence sources to be exposed in this way, and I ask the Minister to explain why journalists’ sources should be treated any differently.

Previously in Committee, the Minister declined to put specific protections in law for journalists on the basis that it was too broad a term. This is why my amendments and Amendment 71 in the name of the noble Earl, Lord Attlee, use the existing definitions in the Police and Criminal Evidence Act and the Investigatory Powers Act. I hope that this approach is more palatable to the Minister and could be adopted at Report.

I omitted to mention that the noble Earl, Lord Attlee, is unable to be here today. I said that I would say a few words on his behalf, and he said that he was sure that I could find the right ones—so let us hope that I have.

My amendments are essential to protect press freedom and the confidentiality of sources. I hope that the Minister will listen to the concerns and bring forward amendments to fix the problems highlighted. I beg to move.

[Lord Rosser]

We have Amendment 69A in this group. The purpose of our amendment is to provide that, where an examining officer wishes to retain an article which the owner alleges contains confidential material, the examining officer may not examine the article and must immediately send the article to the Investigatory Powers Commissioner. The commissioner must then determine whether the article contains confidential material and may then authorise the examination and retention of the article under the provisions of the Bill or return it to the examining officer if it is not confidential. This would provide for the independent oversight of confidential material, as required by the Miranda judgment.

I appreciate that what the Government propose is not in line with our amendment. However, we now have the code of practice, which states:

“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining”,


the item. It also states:

“An examining officer should take reasonable steps to review the credentials of an examinee to verify any such claim when considering whether there are reasonable grounds to believe that a specific item is confidential material”.


It would be helpful if the Minister could respond to my points, as the purpose of my amendment is primarily to find out how it is intended that the process will operate—although we would obviously be extremely grateful if the Government decided to accept the amendment. If an examining officer who reviews the credentials of an examinee feels that the credentials stand up, will they still be able to examine material which they think may be confidential? If the examinee has said that there is confidential material and the examining officer is satisfied with their credentials, is that enough to prevent the item being examined, or would the officer still be expected or able to examine an item to ascertain for themselves that it contains what appears to be confidential material?

In other words, on checking or reviewing the credentials of the examinee, if the examining officer is satisfied, does that mean that there is no question of the examining officer looking at any material that the examinee maintains is confidential, but instead they have immediately to send it to the commissioner to decide whether it should be retained?

Stop and Search Powers

Lord Rosser Excerpts

Monday 12th November 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Answer to the Urgent Question, which was prompted by media reports that the police want changes in the “reasonable suspicion” requirement before using stop and search powers. The vast majority of those stopped turn out to be innocent, and the Prime Minister, while Home Secretary, was concerned that it eroded the trust that ethnic minorities have in the police and in Britain as a fair society. The reality is that intelligence-led stop and search does work, but random stop and search does not work.

I note what was said in the Answer so will simply ask: have any discussions taken place between the Home Office and senior police representatives, including the national police lead for stop and search, at which the issue has been raised of changing or amending the requirement of “reasonable grounds for suspicion” before police use their stop and search powers?

[Baroness Williams of Trafford]

Regarding conversations, the British Transport Police hosted a police and public consultation forum on 2 November. It was a policing seminar on stop and search where debates were had on the effectiveness of stop and search on emerging knife crime and violence. As part of the seminar, the possibility of removing the requirement for reasonable grounds was debated within the group, but it was not put forward by senior officers and was only part of an informal discussion with stakeholders. The Home Office was not in attendance, and the NPCC issued a corrective statement to editors.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, again on behalf of the Joint Committee on Human Rights, I have Amendments 64 and 65 in this group, as my noble friend Lord Paddick has trailed. The Bill gives powers, as does the Terrorism Act 2000, whether or not there is a suspicion. The JCHR’s amendment would insert a test of reasonableness—that is, a threshold of reasonable suspicion—to stop, search and detain for the purpose of determining whether an individual is involved in the commission of a hostile act, and would allow the exercise of these powers only when it is,

“necessary and proportionate to do so”.

My noble friend said that he was not sure whether the second of those words was necessary, or possibly even proportionate. I find it quite difficult to know when one should articulate those criteria. We are told that they must always apply but sometimes it seems necessary to have the debate.

The committee identified five potential interferences with Article 8 rights in the case of a person subject to the power: he must provide any information or document requested—failure to do so is punishable by a substantial fine and imprisonment; he can be stopped and searched; his personal belongings may be copied and retained; he may have biometric data taken; and he may be detained for questioning. These are of course existing provisions but there are distinctions from the 2000 Act. Under this legislation the purpose of the Schedule 3 power is broader and, we think, more ambiguous than the Schedule 7 power in the 2000 Act, giving a greater risk of arbitrary use of the power.

Professor Clive Walker, whom I have quoted before, has suggested that if the real mischief behind these powers is the Salisbury attack, the purpose should be confined to powers to stop, question and detain without reasonable suspicion on the basis that the person has information or is carrying materials which might relate to crimes under the Official Secrets Act or chemical, biological, radiological, nuclear and explosive crimes. Under the schedule to this Bill, there are also broader powers to retain articles and make copies of materials, including “confidential material”, compared to Schedule 7. Under that schedule to the 2000 Act, material cannot be reviewed or copied unless officers have reasonable grounds to believe that it is confidential.

Under Schedule 3, there will be the oversight of the Investigatory Powers Commissioner, which is of course welcome. The Government also point to the fact that the decisions of the commissioner are subject to judicial review as a safeguard but, as the European court has commented, where statutory powers are wide, applicants can face formidable obstacles in proving that decisions are ultra vires. For that reason, among others, we think it is necessary that the statutory powers are clearly defined and sufficiently circumscribed.

[Lord Rosser (Lab)]

We have Amendment 65A in this group. I shall speak to it briefly. Paragraph 1(4) of Schedule 3 states:

“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.


As has already been said, under Schedule 7 to the Terrorism Act 2000, an officer can stop a person without having grounds for suspicion that the individual is involved in terrorist activity. However, the draft guidance published by the Government states that stops under Schedule 3 cannot be arbitrary and must be informed by the threat of hostile activity to the UK. The purpose of Amendment 65A is simply to enshrine the wording in the draft guidance in the Bill. The precise wording in the draft guidance is:

“the decision to select a person for examination must not be arbitrary. An examining officer’s decision to select a person for examination must be informed by the threat from hostile activity to the United Kingdom and its interests posed by foreign States and hostile actors acting for, on behalf of, or otherwise in the interests of, those States, whether active in or outside the United Kingdom”.

The objective of this amendment is simply to put that wording in the draft guidance, which provides some sort of safeguard, into the Bill rather than leaving the Bill with, as it appears to be at the moment, effectively a random stop-and-search power.

--- Later in debate ---

I have an answer to the noble Baroness, Lady Hamwee, but I cannot read it and therefore do not know what the question was. Whatever the question was, I shall write to her about it.

[Lord Rosser]

On Amendment 65A, as I understand it, the Government are not arguing that the amendment in any way compromises the position of the security agencies but it would make clear in the Bill that such considerations need to be taken into account. They have been written into the draft guidance. What is the objection to putting them into the Bill in place of the current wording, which looks a bit like a random stop and search?

--- Later in debate ---

Moved by

[Lord Rosser]

53A: Schedule 2, page 38, line 17, at end insert—
“_(1) A person whose biometric data is retained under the provisions of this Schedule may appeal to the Commissioner for the Retention and Use of Biometric Material (“the Commissioner”) for the destruction of that data when the conditions in sub-paragraph (2) are met.(2) The conditions referred to in sub-paragraph (1) are—(a) that the retention of the biometric data has not been previously authorised by the Commissioner or a court of law; and(b) that the biometric data was taken from the person—(i) in circumstances where the arrest or charging of the person was substantially due to a mistake, whether of identity, place or other material fact; or(ii) the person was arrested but never charged for the relevant offence.(3) On receiving an appeal under sub-paragraph (1), the Commissioner must seek representations from the chief officer of police in the area in which the biometric data was taken as to whether the data should be destroyed or not.(4) The Commissioner must determine an appeal under sub-paragraph (1) within three months of receiving the appeal.”

[Lord Rosser]

Much of this Bill is about the appropriate balance between liberty and security in the present climate, where acts of terrorism are a reality rather than a distant or remote possibility. The differences of view over some parts of this Bill are in effect over where that appropriate balance between liberty and security should lie, since I presume that we are all in agreement with the principle that there has to be such a balance. Amendment 53A is also about where that balance should lie.

Clause 18 and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes. The amendment would enable a person whose fingerprints and DNA profiles are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted.

The amendment highlights and addresses two scenarios. The first is where there has been a mistake, such as over identity, place or any material fact or in the intelligence. The second scenario is where a person has been arrested but not charged for the offence. Under the terms of the amendment, an application can be made to the commissioner for the destruction of data where one of those two scenarios has been met as well as the requirement that the retention of the data has not been previously authorised by the commissioner or a court of law.

On receiving an appeal from the person whose biometric data has been retained, the commissioner would then be required to seek representations from the relevant chief officer of police as to whether the data should be destroyed, with the commissioner having to determine the appeal within three months.

If people’s data are retained in circumstances where a mistake might have been made or where they have not ultimately been charged with an offence, they should be able to appeal to have it destroyed. That right of appeal is surely quite important. At present, the Police and Criminal Evidence Act states that biometric data must be deleted by the police if it was taken where,

“the arrest was unlawful or based on mistaken identity”.

As far as I can see, the Police and Criminal Evidence Act does not provide for a personal right to appeal, which is what this amendment would give. This is surely an important principle. This amendment does not overturn the principle that there should be a period of automatic retention following a lawful and correct arrest on suspicion of terrorism. Indeed, it does not remove anything from Schedule 2.

Under Schedule 2, the time period for national security determination is amended. An NSD allows a chief police officer to determine that it is necessary and proportionate to extend the retention period for biometric data for the purposes of national security for an extra two years to five years, where it would otherwise be destroyed. An increased period of five years is a long time to retain the data of persons who have never been charged with a crime, particularly in the absence of a right of appeal. The amendment seeks to provide such an appeal through the Biometric Commissioner, who would make a decision on retention of data or otherwise based on whether it was necessary and proportionate to do so.

I hope that the Government will feel able to accept that, in the changed circumstances provided for in the Bill, the right of appeal being sought in this amendment should be taken up. I beg to move.

[Earl Howe]

My Lords, as the noble Lord, Lord Rosser, has explained, this amendment would provide for a person whose fingerprints and DNA profile are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted if the commissioner or a court have not previously authorised its retention.

One of the circumstances in which this new process would apply is where an individual had been arrested or charged as a result of a mistake, such as mistaken identity. I am pleased to be able to tell the noble Lord that existing legislation already addresses such cases of mistaken identity, providing a stronger safeguard, in fact, than the one he is proposing. Section 63D(2) of the Police and Criminal Evidence Act 1984, or PACE, provides that biometric data must be deleted by the police, without the individual needing to appeal, if it was taken as a result of an unlawful arrest, or an arrest based on mistaken identity. Given this existing provision, I believe that this aspect of the amendment is not necessary.

The second limb of the amendment covers cases where a person has been arrested but not charged with an offence. Of course, we touched on this ground in debating Amendment 47, tabled by the noble Baroness, Lady Hamwee. As I indicated in response to that earlier debate, the Government’s view is that where someone has been lawfully arrested for a terrorism offence but not charged with that offence, it is none the less appropriate, necessary and proportionate that their fingerprints and DNA profile are retained by the police for three years. That approach has been firmly established for some years, through the Terrorism Act 2000, and we are now extending it to cover persons arrested for exactly the same terrorism offences under PACE. Consequently, I am not persuaded that we should now introduce a right of appeal to the Biometric Commissioner in such cases.

I stress that the Bill does not depart from the principle established by the Protection of Freedoms Act 2012 that the biometric data of a person who is arrested but not charged should not normally be retained indefinitely, as had previously been the case. In passing this legislation in 2012, Parliament recognised, rightly in my view, that in certain circumstances it is appropriate and in the public interest for biometric data to be retained for limited periods in the absence of a conviction. This includes when an individual is arrested under the Terrorism Act 2000 on suspicion of being a terrorist but is not subsequently charged. The law provides for a three-year automatic retention period in this situation. However, the retention of biometric data for any longer than this would require a national security determination to be made by a chief officer of police and approved by the independent Biometrics Commissioner.

As we have already debated, Schedule 2 makes an equivalent provision for a case where the same person may be arrested on suspicion of the same terrorist activity but under the general power of arrest in PACE. The flexibility to arrest an individual under the Terrorism Act or PACE is a decision to be taken by the police, one which will be based on operational considerations. It is a gap in legislation that the same biometric retention rules do not follow the two powers of arrest in terrorism cases, despite the fact that there may otherwise be no material difference between two such cases. Schedule 2 closes that gap. While I support the principle that biometrics taken following a mistaken or unlawful arrest should be deleted—that is the position at law already—I am afraid I cannot agree that we should remove the equally well-established principle that there should be a limited period of automatic retention following a lawful and correct arrest on suspicion of terrorism.

--- Later in debate ---

For all those reasons, I hope that I have been able to persuade the noble Lord, Lord Rosser, that the existing framework, as modified by Schedule 2, offers sufficient safeguards to address the points he has raised, and consequently that he will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that reply. Reference was made to the arrangements under PACE and the fact that biometric data must be deleted by the police if it was taken where the arrest was unlawful or based on mistaken identity, but what happens if it is not deleted in such circumstances?

As I understand it, there is no right of appeal for the individual under PACE, and I am not quite sure whether that is what the Minister was telling does exist as opposed to a duty on the policy to delete it where the arrest was unlawful or based on mistaken identity. There is a distinction between the police having a duty to do it if the arrest was unlawful or based on mistaken identity and the individual having a right to appeal on those grounds because it may be that that individual has information which for some reason or other the police did not have which might change their view on the matter. I am not clear whether the Minister was telling me that under PACE the individual has a right of appeal or whether it is just something that the police should do. I think there is a big difference between something the police should do and an individual having the right to challenge, which is what my amendment provides for, so I do not think that on that issue the Government have provided much of an assurance.

Reference was made to the basis on which the Biometrics Commissioner would consider the matter. I appreciate it is not in the amendment, but I said in my contribution that the decision on the retention or otherwise of data would presumably be on the basis of whether it was necessary and proportionate which, as the Minister said, is the basis on which the security issue and the extension of data would be based in the first place.

On the last point that the Minister made on behalf of the Government about the security issue of not being able to tell an individual the reasons for declining an appeal, which is presumably what we are taking about, in my amendment I am not suggesting that very sensitive and crucial information should be disclosed in announcing a decision. If the Government’s only real objection to the amendment is that if the reasons for the decision have to be declared in full it would cause difficulty, which I can understand, surely the matter could be looked at on the basis that the reasons given for the decision would be such as not to disclose sensitive information related to counterterrorism. I beg leave to withdraw the amendment.

Amendment 53A withdrawn.

--- Later in debate ---

[Lord Rosser]

I will listen to what the Minister says in response to the amendment, but from what I have heard so far, the case for it appears somewhat compelling.

[Baroness Williams of Trafford]

My Lords, it is never nice to stand up and feel defeated on a matter. I shall outline the various points on proscription. As noble Lords will know, the effect of proscription is that the organisation is added to Schedule 2 to the 2000 Act, and that a number of offences bite in relation to membership and support for it. In practice, the Home Secretary is responsible for proscriptions relating to international and domestic terrorist groups, and the Northern Ireland Secretary for Northern Ireland-related terrorist groups.

Under Section 4 of the 2000 Act, either a proscribed organisation itself, or a person affected by its proscription, may apply to the Secretary of State for it to be deproscribed. Section 5 establishes the Proscribed Organisations Appeal Commission to consider appeals against refusal of an application under Section 4, and there is a route of appeal on a point of law from the commission to the Court of Appeal.

Amendment 59 would place a duty on the Secretary of State to review every proscribed organisation on an annual basis, to determine whether it continues to meet the legal test for proscription. The Secretary of State would, further, be required to decide whether each organisation should remain proscribed or should be deproscribed, and to publish that decision. As the noble Lord, Lord Anderson, has explained, his amendment reflects recommendations he made in his former role as Independent Reviewer of Terrorism Legislation—a role which he performed with great eminence and authority, and in which he made a great contribution. I do not think that he will agree with me just because I have said that.

The noble Lord will, of course, be familiar with the Government’s long-standing policy on removing terrorist organisations from Schedule 2 to the 2000 Act, from the responses of successive Home Secretaries to his reports as independent reviewer. However, for the wider benefit of your Lordships, I will, if I may, spend a short while setting this out. The Government continue to exercise the proscription power in a proportionate manner, in accordance with the law. We recognise that proscription interferes with individuals’ rights—in particular the rights protected by Articles 10 and 11 of the European Convention on Human Rights: freedom of expression and freedom of association. That is why the power is exercised only where necessary.

We should recall that organisations are proscribed for a reason—because they are concerned in terrorism. Our first priority is to protect the public and support our international partners in the fight against terrorism, and the power to disrupt a proscribed organisation by preventing it from operating or gaining support in the UK is an important one in this struggle. Where the Home Secretary has decided on advice, including from operational partners, that this test is met, with the serious consequences that flow from that, we consider it appropriate to continue to take a cautious approach when considering removing terrorist groups from the list.

While we take extremely seriously our responsibility to protect the public and to prevent terrorist groups from operating in the UK, it is not the Government’s position that once a group has been proscribed that should simply be indefinite, without the prospect of ever being removed from the list. To this end, Parliament provided a clear route for any proscribed organisation, or any person affected by an organisation’s proscription, to submit an application to the Home Secretary for the organisation to be deproscribed. Indeed, three groups have been deproscribed following such applications.

This, I believe, is the most appropriate and balanced way to deal with the question of deproscription. It ensures that any person who believes that any proscription is inappropriate has a clear route to challenge that proscription, so that groups which are not concerned in terrorism and no longer pose a risk to the public can be deproscribed. But it also avoids placing the public at risk, or causing alarm, through precipitate decisions to lift restrictions on organisations with a significant terrorist pedigree but which may have, for example, become less visibly active in recent times. It is an enduring feature of the terrorist threat that both individuals and organisations with a terrorist mindset can disengage and then re-engage in terrorist activity, potentially without warning. Such individuals and groups will continue to pose a threat, and to be properly characterised as terrorist, during both their fallow and active periods, and it would not be responsible for the Government to remove the prohibitions and stigma that apply to proscribed organisations unless we are truly certain that they have changed and no longer pose a threat.

The Government are committed to ensuring that the right groups are proscribed and that the public are protected. But we are not persuaded that introducing regular formal reviews of past proscription decisions would in practice prevent any injustice, particularly given the existence of a review system on application, whereas such a system of formal reviews could lead to perverse outcomes and would have a significant operational impact in terms of diverting investigative and intelligence resource from current threats to public safety in order to carry out the reviews.

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Moved by

[Lord Rosser]

59A: After Clause 20, insert the following new Clause—
“Continued participation in the European Arrest Warrant
(1) It is an objective of Her Majesty’s Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in the European Arrest Warrant in relation to persons suspected of specified terrorism offences.(2) In this section, “specified terrorism offences” has the same meaning as in Schedule 15 to the Criminal Justice Act 2003.”

[Lord Rosser]

My Lords, the effect of this amendment is to insert a new clause into the Bill which would make it an objective in the Brexit negotiations to continue participation in the European arrest warrant. European arrest warrants are valid in all member states of the European Union and can be used to ask a state to arrest and transfer a criminal suspect to be put on trial, or to ask for someone who is sentenced to custody to be transferred to the UK to complete their sentence. In the calendar years from 2010 to 2016, the United Kingdom issued 1,773 requests. Of these, 11 related purely to terrorism and a significant further number to organised crime including human trafficking, child sex offences and drugs trafficking.

Extradition outside the European arrest warrant can cost four times as much and take three times as long. It would also mean an end to the significant exchange of data and engagement through Europol. In counterterrorism investigations, speed is of the essence and it is thus vital that we have the objective of continuing to play a key role on the European security scene. Recently the European arrest warrant has been obtained in respect of the two suspects in the Salisbury attacks, which means that if they set foot in the European Union they will be remanded to the UK to face justice.

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[Baroness Williams of Trafford]

My Lords, I thank all three noble Lords for their points on the European arrest warrant and our future law enforcement, internal security and criminal justice relationship with the European Union following our exit from it. The Prime Minister has repeatedly made clear that the UK is unconditionally committed to maintaining Europe’s security now and after our withdrawal from the EU. We are proposing a comprehensive security relationship which preserves that mutually important operational capability that enables UK and EU operational partners to work together to combat fast-evolving security threats, including in respect of terrorism and hostile state activity.

In July, the Government published a White Paper on our future relationship with the EU. It sets out how we are seeking a relationship that provides for mechanisms for rapid and secure data exchange, practical measures to support cross-border operational co-operation, and continued UK co-operation with EU law enforcement and criminal justice agencies. We continue to value our co-operation and information sharing on issues such as extradition, and believe that a pragmatic solution is in the interests of EU member states and the UK. Our primary objective is to keep our citizens safe.

While I welcome this opportunity to reiterate the Government’s commitment to maintaining a strong security partnership with the EU after exit, the nature of the future relationship is a matter for negotiations. As such, it would not be appropriate or necessary to include in primary legislation any measure that pre-emptively binds the Government’s hands by setting our negotiating objectives. That point was accepted when this matter was voted on in the House of Commons in September, and was accepted by both Houses when the European Union (Withdrawal) Bill was enacted.

We are clear that we want a security partnership that maintains co-operation in these areas but negotiating objectives are just that, and not a matter for this or any other Bill. Parliament will agree the final form of the withdrawal agreement when legislation to give effect to it is brought forward in due course. Therefore, at this stage, I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank the Minister for her reply and other noble Lords for their participation in this brief debate. From what has been said in response, I am not entirely clear whether that meant that it was part of our negotiating position that we would continue to participate in the European arrest warrant, or whether the Government are accepting that, under whatever deal is done, it will not be possible to continue to participate, for some of the reasons that have already been voiced in this evening’s debate. I do not know whether the Minister is able to help me on that and say whether it is our negotiating position to try to remain within the European arrest warrant system or whether the Government accept that we cannot, and the hope is that something comparable can be the subject of negotiation.

[Baroness Williams of Trafford]

I said to the Committee that that aspect of security co-operation was absolutely vital, and therefore some sort of security agreement was being worked on at the time. I cannot pre-empt what that will look like, but all the co-operation we enjoy now should continue, although, as the noble Lord, Lord Paddick, said, it may not be in the form of a European arrest warrant, given that no other non-EU states have been able to avail themselves of it. But it should certainly align closely with what we have now.

[Lord Rosser]

I thank the Minister for that clarification. This short debate has been useful; one thing it has shown—by the way, I do not suggest that it has only just come to light—is that the future of the European arrest warrant is in doubt at present, which is potentially quite serious from our nation’s point of view. Let us hope that that does not come to pass. I beg leave to withdraw the amendment.

Amendment 59A withdrawn.

Brexit: Arrangements for EU Citizens

Lord Rosser Excerpts

Monday 5th November 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Answer to the Urgent Question in the other place. Last week the Immigration Minister told the Commons Home Affairs Select Committee that in the event of a no-deal Brexit:

“If somebody has not been here prior to the end of March next year, then employers will have to make sure that they go through adequately rigorous checks to evidence somebody’s right to work”.


First, was that statement correct in all respects: that employers after 29 March 2019 will have to differentiate between resident EU citizens already here and those arriving after our departure from the EU? Secondly, if the Immigration Minister’s statement was correct, what form will these “rigorous checks” after 29 March take that employers will have to make sure that EU citizens not already here prior to that date will have to go through to evidence their right to work? How will these rigorous checks differ from what employers have to do at present when EU citizens seek work here under the existing EU free movement of labour provisions? Finally, when will sadly lacking publicly available written guidance on this specific issue be provided?

[Baroness Williams of Trafford]

I thank the noble Lord for that question. Regarding employer checks, he will know that employers already need to carry out right-to-work checks on EU citizens, and that will not change. It is clear that employers will carry out right-to-work checks on EU citizens as they already do, and they will not be expected to differentiate between a resident EU citizen and those arriving after March 2019. However, in addition, I understand that employers have been given toolkits to enable them to carry out their duties in the right way.