Counter-Terrorism and Security Bill

Lord Rosser Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Ashton of Hyde]

My Lords, we move now to Part 4 of the Bill—I hope, briefly—dealing with aviation, shipping and rail. I hope that these government amendments will find favour with your Lordships. During Committee, I acknowledged the concern of noble Lords that the Bill as drafted provided only for indirect parliamentary scrutiny of an authority-to-carry scheme made under Clause 22. The Delegated Powers and Regulatory Reform Committee expressed a similar concern in its report on the Bill.

In recognition of your Lordships’ concerns, the Government undertook to consider further how we could provide for more direct parliamentary scrutiny of such a scheme. I am pleased to inform the House that Amendment 12 provides for direct scrutiny by laying before Parliament regulations subject to affirmative procedure which bring a scheme, or a revised scheme, into force. With this approach, the scheme comes into force by regulation. This will allow for schemes to be similar in format to the 2012 scheme, which carriers will be familiar with and where the use of plain English makes it more easily accessible to foreign-registered carriers. Amendment 12 enables this. Amendment 13 is a consequential amendment to Clause 23. I beg to move.

[Lord Rosser (Lab)]

We had an amendment in Committee when this issue was discussed, in the light of the report of the Delegated Powers and Regulatory Reform Committee in particular, its view that Clause 18 constitutes a significant delegation of powers to the Secretary of State and that the Bill should be amended so that the powers are exercisable by statutory instrument. In their response, the Government said that they were considering the report of the DPRRC, would reflect on the concerns expressed in the debate and then return to this issue on Report. The Government have done that with their Amendments 12 and 13, which we support. We thank them for their further consideration of this issue.

Amendment 12 agreed.

Counter-Terrorism and Security Bill

Lord Rosser Excerpts

Wednesday 28th January 2015 Lords Chamber

Moved by

[Lord Rosser]

105A: Schedule 3, page 47, line 4, at end insert—
“A unitary authority.”

[Lord Rosser (Lab)]

My Lords, Clause 21 places a general duty on specified authorities, defined as,

“a person or body that is listed in Schedule 3”,

to have a general duty to have due regard, in the exercise of their functions,

“to the need to prevent people from being drawn into terrorism”.

Included among the specified authorities on which this general duty is placed are local authorities. The types of local authorities covered are listed in Schedule 3. They include a county council or district council in England, the Greater London Authority and a London borough council. What Schedule 3 does not appear to include is unitary authorities in general. The purpose of this amendment is to invite the Government to clarify which local government unitary authorities are covered by Schedule 3 and which are not, and the basis of that decision.

Two examples of unitary authorities which do not appear to be included in Schedule 3 are Thurrock and Southend in Essex. Clearly, Essex County Council is covered by Schedule 3 and will have the general duty placed on it under this Bill to have due regard to the need to prevent people from being drawn into terrorism. That duty will not apparently also be placed on the Thurrock and Southend unitary authorities. Is it the intention, to use Thurrock and Southend as examples, that the responsibility will rest with the county council rather than the unitary authority? If so, why, and how will the arrangements work in this situation within the areas of the Thurrock and Southend unitary authorities? On which local authority, or local authorities, will the duty in Clause 21 lie in our major cities in England outside London, such as Birmingham and Manchester?

The consultation document on the Prevent duty guidance asks the question as to whether there are additional local authorities that should be subject to the duty to prevent people from being drawn into terrorism. Perhaps that means that the Government have some doubts about whether the list of local authorities covered by Schedule 3 is as extensive as it might be. In their factsheet on the Bill, the Government give us an example of what steps local authorities should take to meet their Prevent duty in the Bill. The example given—one that the Minister referred to in an earlier debate—is that local authorities should ensure that publicly owned premises are not used to disseminate extremist views. Does that mean only in local authorities covered by Schedule 3 and not in those that are not covered by Schedule 3?

It also appears, subject to what the Minister is going to say, that while not all local authorities are covered by Schedule 3 on the duty to prevent people being drawn into terrorism, under Clause 28 each local authority must ensure that a panel of persons is in place for its area to ensure support for people vulnerable to being drawn into terrorism. That would appear to be a bit of a contrast.

I hope I have made it clear that the purpose of this amendment is to seek clarification on which unitary authorities are and which are not covered by Schedule 3 and the reasons behind that decision. I await the Minister’s response. I beg to move.

--- Later in debate ---

[Lord Bates]

As I sat down to take that intervention, further inspiration came to me on this matter. We are consulting GPs on their role in this, and we will have regard to the important points relating to patient confidentiality to which the noble Baroness referred.

Finally, Amendments 119 to 122 would allow the Government to make changes, through regulations, to Schedules 3 and 4 at any time after the Bill is granted Royal Assent, and before such time as the rest of this part commences. The amendments ensure that, in the event that there are additional bodies to which the Prevent duty should apply or which should be partners to Channel panels, then those bodies can be added to the appropriate schedule with as much notice as possible before the duties on them commence. This is clearly in the best interests of those bodies because it will give them time to prepare. This has particular relevance to the addition of Scottish bodies. The Government have made clear that it is our hope and intention that Scottish bodies will become subject to the Prevent duty, and we are currently discussing this with the Scottish Government.

We still wish to make the changes to the schedules as soon as possible after Royal Assent, and to have the duty commence for all specified authorities in England, Wales and Scotland at the same time. Therefore, I invite the Committee to agree these government amendments and trust that, in the light of my earlier clarification, the noble Lord will feel able to withdraw the amendment.

[Lord Rosser]

I thank all noble Lords who have taken part in this debate. I am left feeling somewhat lonely. I think that I am the only noble Lord who has spoken in this debate who is not actually going to get a letter. I appreciate that the Minister was repeating the legal advice that he had been given—I do not doubt that advice—but having apparently found out that the reference to:

“A county council or district council”,

covers unitary authorities, it would be helpful if he were able at least to quote other legislation in which a reference to a county council or district council is meant to include a unitary authority. I am sure it exists; this is not a challenge. I assume from the advice given to the Minister that there must be examples in other legislation where that is the case. It would be helpful if there could be a note on that, or at least some communication to make that point.

[Lord Bates]

I am happy to write to the noble Lord on that.

[Lord Rosser]

I thank the Minister. I no longer feel lonely; I am going to get a letter as well. The question has also been raised as to why the consultation asked:

“Are there additional local authorities that should be subject to the duty?”.

I appreciate that parish councils are not mentioned but I hardly imagine that they are going to be covered by the duty; therefore, bearing in mind that unitary authorities are covered, I am not sure exactly which local authorities people might suggest could be included. However, I am not inviting the Minister to send me a letter covering that question. I am grateful to him for his reply, and I am sure that other noble Lords are grateful to him for his willingness to respond to the queries I have raised. I beg leave to withdraw the amendment.

Amendment 105A withdrawn.

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[Lord Rosser]

My Lords, we have one amendment in this group, Amendment 115AD. Its effect is to give the Secretary of State statutory responsibilities in supporting local assessment and support panels exercising their functions under Clause 28 by requiring the Secretary of State: to provide guidance—rather than it being optional—on the exercise of the panel’s functions; to provide a list of approved providers for de-radicalisation programmes; and to ensure that the approved providers are subject to monitoring.

Under Clause 28, each local authority must ensure that a panel of persons is in place for its area with the function of assessing the extent to which identified individuals are vulnerable to being drawn into terrorism. That panel, whose chair has to be the responsible local authority, must, among other duties laid down in Clause 28, prepare a plan in respect of identified individuals whom the panel considers should be offered support for the purpose of reducing their vulnerability to being drawn into terrorism.

The effect of Clause 28 is to put the voluntary programme for people at risk of radicalisation, in operation since 2012 and known as Channel in England and Wales, on a statutory basis alongside the rest of the Prevent programme. Local authorities will not need to establish a new panel if there is already one which carries out the functions set out in Clause 28. The reason for taking this step is stated in the Government’s impact assessment as being to secure effective co-operation from multi-agency partners and ensure that good practice can be recognised, shared and applied between areas using common practices to further improve implementation of the programme. However, while the Government are putting these statutory duties on local authorities in respect of the panels, there appear to be no similar provisions to ensure that they are supported by central Government. Indeed, the Government’s factsheet on the Bill also states that there will be no extra funding for councils and local areas.

Under Clause 28, a chief officer of police must make the referral of an individual to the local support panel. As provided for in the Bill, local support panels have to assess the individual’s risk of radicalisation and tailor a support package to address those risks. The issues are complex and the current guidance cites, I think, 22 vulnerability indicators that may lead to a Channel referral. The panel must weigh up these factors and tailor a support package which could have any number of elements. In some areas the panels could be addressing issues that they have not faced before.

There is a need for the Home Office to support local panels by providing an approved list of support providers who are able to give the specialist interventions needed to address the specific issues facing the individual in question and to approve the list of support providers to help ensure effective support packages and value for money.

The panel is also tasked with assessing the progress that the individual makes. However, it does not necessarily have the ability to assess the quality of support provided by other agencies, which is why the Home Secretary should also be required to assess providers, as set out in the amendment. I suspect that the Minister will say in response that the Secretary of State and the Home Office already do much of what is laid down in this amendment, but frankly that rather misses the point. Since the responsibilities and duties of local authorities in respect of the local panels are now being placed on a statutory rather than a voluntary footing under the Bill, it is only right—if we are talking about a true partnership between central and local government on supporting people vulnerable to being drawn into terrorism—that the responsibilities of central government in respect of the functioning and effectiveness of, and support for, the local panels should also be placed on a statutory rather than an optional footing. That is what this amendment seeks to do, and I hope the Minister will feel able to give a sympathetic response.

[Lord Carlile of Berriew]

My Lords, I will just say a few words in relation to this group. Best practice as I have observed it around the country has involved local authorities doing more or less what is set out in the provisions in this part of the Bill. Indeed, in the London Borough of Waltham Forest, for example, I have witnessed a meeting of exactly the kind described here. However, the practice has been very varied around the country. Some local authorities have done almost nothing, and it is absolutely clear that the most important work can be done, and needs to be done, at least under the aegis of local authorities. I therefore commend the provisions.

However, one or two things have been said during the course of this short debate which are particularly important. I will just focus on one of them, a remark by my noble friend Lady Hamwee about housing. Housing providers—which obviously does not just mean councils—have a huge amount of corporate knowledge about what is going on in large social housing projects. I have heard housing managers give an almost flat-by-flat or house-by-house description of activity which might be of concern in relation to Prevent and other aspects of counterterrorism policy. Before the Bill reaches its final stages, I ask my noble friend to consider whether there should be a reference to housing in these clauses.

The other point is about the police. It is of course right that the police should be involved in this activity, however there is a danger of exaggerating the role that the police play in Prevent. Of course the police should draw it to the attention of the relevant authorities—including the local authority and those involved in education, housing and so on—when they have detected concerns about the danger of radicalisation. However, we should not allow ourselves to be trapped in the position of believing that the police are the lead agency, or even a lead agency, in counter-radicalisation. It is when the police are overinvolved that communities become suspicious in the way that was mentioned earlier—perhaps with a degree of hyperbole—by the noble Viscount, Lord Hanworth. I simply ask my noble friend to keep in mind that there needs to be perhaps a little more flexibility than appears to be in the clause which the amendments in this group seek to amend.

--- Later in debate ---

[Lord Rosser]

The Minister has given the reply that I indicated I thought would be forthcoming—namely that what I have asked about is already being done. However, the question is: if the Bill puts the functions of the local authority and the local panels on a statutory footing, why not also put the requirements that the Secretary of State is expected to meet on a statutory footing, even though that may be being done anyway?

[Lord Ashton of Hyde]

The reason that we want to put this on a statutory footing—which was recommended, incidentally, by the Government’s extremism task force—is to enhance the engagement and co-operation of partner agencies and to ensure that best practice is adopted. I know that the noble Lord asked as well about funding for Channel. We are not expanding Channel. It is already a national programme across England and Wales, so we do not consider that it needs more funding.

[Lord Rosser]

The point that I was raising was not about funding or querying why the local panels would be put on a statutory footing. My query was: if the local panels are being put on a statutory rather than a voluntary footing—which we are not arguing about—why not also put the requirements that the Secretary of State will be expected to meet on a statutory footing as well, rather than putting those on an optional basis? That is what is provided for in the Bill, but the Minister is reiterating that the Secretary of State does anyway what I am seeking to put on a statutory basis. Why not put that on a statutory footing in the same way as the activities of the local panels will be put on a statutory rather than voluntary footing?

[Lord Ashton of Hyde]

There is a reason why we want to put the local authorities’ duties on a statutory footing. If the Secretary of State is doing everything that the noble Lord wants her to do, I do not see any particular benefit in putting that on a statutory footing. However, rather than going backwards and forwards on this, I am prepared to take this matter back. If there is more information that I can provide to the noble Lord, I will do so.

All providers are bound by a service level agreement with the Home Office that sets out the terms and conditions of their appointment, including conduct. In addition, as part of their co-ordination role, the police regularly review progress made against any interventions commissioned. Any misconduct will be treated seriously, with the option of terminating an agreement with a provider. It would be unusual—and we think unnecessary—to provide for these matters in the Bill.

Finally, I would like to address my noble friend’s Amendment 118ZA, which seeks to ensure that the Secretary of State must indemnify a support provider against any costs and expenses incurred in carrying out functions as a provider. I would like to reassure noble Lords that the costs for each case would be considered and, where the case was deemed appropriate, those reasonable costs would be indemnified. However, there might be some cases where it would not be appropriate to indemnify costs. One of the key reasons for resisting making the indemnification clause a blanket duty, required in all cases, is that it is included in the Bill to plug a gap that might not arise in all cases. The gap is the absence of reasonably priced insurance in the open market for risks that might arise for intervention providers. Depending on the precise nature of the support the provider is giving, there may or may not be sufficient availability of cover in the market. The intention behind Clause 32 is to allow the Secretary of State, only where a provider cannot get adequate cover, to step in with an indemnity. We do not want the Secretary of State to have to indemnify if a product is available on the market. The Secretary of State should therefore have discretion to decide which costs or expenses would be indemnified, but, as I have said, it is the intention that reasonable costs would be indemnified.

I hope that my responses have addressed the concerns raised by these amendments during this debate, and on that basis, I invite noble Lords not to press the amendments.

Counter-Terrorism and Security Bill

Lord Rosser Excerpts

Monday 26th January 2015 Lords Chamber

[Baroness Hamwee]

My Lords, in moving this amendment I will speak also to Amendment 74. The noble Baroness, Lady Smith, also has an amendment in this group.

Clause 15 deals with appointments which an individual can be required to keep. Following comment from the current Independent Reviewer of Terrorism Legislation, this takes advantage of the legislation in order to require individuals to attend appointments, for instance, in connection with deradicalisation. I really do not like that term: perhaps I might say appointments that would help the individual return to or lead a more comfortable and normal life. Amendment 72 would add that the individual could request somebody other than the specified person.

Different individuals respond in different ways to different counsellors, if I can use that term in a very wide sense. This work has to be dealt with case by case, and it would be a pity if it were to fail because of the individual and his counsellor simply not getting on and there not being a sensible opportunity to change the personnel. We all know of people who we simply cannot rub along with for reasons that sometimes we cannot even quite identify.

Amendment 74 would provide, in connection with such appointments, that the Secretary of State would be deemed to have given permissions for travel to enable the individual to attend appointments and, crucially, will not unreasonably withhold permissions to attend appointments relating to deterring other people from involvement in terrorist-related activity. We are all aware—it is a matter of common sense—that returning fighters may have a positive role in deterring other people. In the debate on Thursday on the latest proscription order that has been introduced, the noble Baroness gave an example of a woman trying to return to this country who was disillusioned with what she had found—I think—in Syria. That sort of disillusionment should be harnessed, and I would like to find every way of making this legislation positive as well as inevitably negative. I hope that my noble friend can assure the Committee in that connection.

I gave the Bill team notice of this matter this morning—if it has not yet reached the Minister, I will understand if he cannot answer—and will pick up an issue that the independent reviewer raised. This matter was also taken up by the JCHR: the question of privilege against self-incrimination. The Government’s response to the independent reviewer’s report was to say that this would not be appropriate. The Government referred to a “blanket approach”. Can the Minister unpack that a little today? I beg to move.

[Lord Rosser (Lab)]

My Lords, our Amendment 73 is in this group. As has been said, Clause 15, on appointments for people on terrorism prevention and investigation measures, allows the Secretary of State to require an individual to attend meetings with such persons as the Secretary of State may specify, at such locations and at such times as the Secretary of State may by notice require. The specified persons may choose the time and place of the meeting. The clause is expressed in general terms and the purpose of the amendment, which is a probing amendment, is to give the Government the opportunity to say more about what kind of meetings an individual would be required to attend, for what purposes or objectives and over what period of time. It would also be helpful if the Minister could say if assessments will be made of the outcome of these meetings and to whom the assessments, if they are made, will be given.

Our probing amendment provides for the Secretary of State to be able to instruct an individual on a TPIM to attend deradicalisation programmes, since we think it is important that the Secretary of State should be able to require people to attend Channel meetings and appointments and possibly those relating to other parts of the Prevent programme. However, I hope that in his response the Minister will not only address the specific point covered in this probing amendment but talk in more depth about how the Government envisage using powers under Clause 15.

[Lord Bates]

My Lords, I am grateful to noble Lords who have spoken in this debate. I will put some remarks on record that I hope will answer some of the points made by the noble Lord, Lord Rosser, and then deal with some of the points made by my noble friend Lady Hamwee. I am grateful to noble Lords for raising these matters.

Amendment 72 seeks to amend the appointments measure by overtly stating that a TPIM subject may request an alternative person to the individual specified by the Secretary of State. The Secretary of State will consider whether an appointments measure is necessary for a TPIM subject for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. If a TPIM subject wants to meet a particular person, such as a counsellor, there is nothing to prevent them from making their own arrangements to do so, as long as the measures in their TPIM notice are not breached. In addition, the TPIM Act 2011 already provides the ability—under Section 12—to vary the measures in the individual’s TPIM notice, or for the Home Office to grant permission for the subject to do something they would otherwise be prohibited from doing.

The choice of people or organisations—a point touched on by the noble Lord, Lord Rosser—that a TPIM subject is required to meet will be decided on a case-by-case basis. To develop that a bit further, the types of people who it might be appropriate to recommend particular meetings with include probation officers, somebody from a job centre, if, for example, they are looking for work, or another of the individual’s mentors. As my noble friend said, the point is that we want people who return to the UK to be reintegrated into mainstream society because we believe that they can be very important elements in the prevention strategy aimed at those who might follow in their footsteps. This consideration would include whether such requests might lead to more genuine engagement or were aimed at undermining the effectiveness of this measure, or whether any national security concerns were raised.

Amendment 73, in the name of the noble Lord and the noble Baroness opposite, would amend the appointments measure in Clause 15 that allows the Secretary of State to require an individual to attend meetings as specified by the Secretary of State. The appointments measure is a broad power that allows the Secretary of State to require a TPIM subject to meet relevant organisations or people who can contribute to their ongoing management and integration. The measure includes the ability to require TPIM subjects to meet specified people to assist with their deradicalisation, including, but not limited to, providers of the Channel programme, for example. It is therefore unnecessary to specify explicitly that this is available via the appointments measure.

Amendment 74 seeks to specify that the Secretary of State may not unreasonably withhold permission for a TPIM subject to attend appointments related to deterring other people from involvement in terrorism-related activity. The purpose of the TPIM notice is to protect the public from terrorism and to prevent the TPIM subject from engaging in terrorism-related activity. If the measures are no longer necessary, the TPIM notice must be revoked. Therefore, anyone on a TPIM notice remains an ongoing national security concern. This being the case, we do not consider TPIM subjects necessarily to be good people to mentor others. However, if a TPIM subject chose to speak at a meeting to deliver a deterrent message, he or she could do so as long as it did not breach any of the measures in his or her TPIM notice. If it did breach any of the measures, or he or she encouraged people to engage in terrorism, of course they could be prosecuted.

Turning to the specific point—I am grateful to my noble friend for sending the notice to the Bill team ahead of this debate—about David Anderson’s report on TPIMs, the new measure will be an important part of the management of TPIM subjects and will mean that they must meet organisations and other persons as required by the Home Secretary. Its primary purpose is not to gather evidence to prosecute TPIM subjects. Nevertheless, it would be undesirable to create a situation where a TPIM subject provided clear evidence of committing a crime—including terrorism—but where, due to a statutory bar, that evidence could not be relied on, in any circumstances, in criminal proceedings.

In addition, the criminal courts have the power to exclude evidence where to allow it would have an adverse effect on the fairness of proceedings. We consider this to be a sufficient safeguard to ensure that information obtained in these meetings cannot be unfairly used against the individual. However, we will consider on a case-by-case basis whether appropriate assurances can be provided about how information obtained through the appointments in these measures will be used.

I was asked whether the assessments would be reported back—and, if so, to whom. Where appropriate, assessments will be provided to the Home Office. The ongoing necessity for meetings to continue will be kept under review depending on the nature of the meetings. Some may be one-off while others may be regular over a prolonged period. I think that the overarching message of the response to these amendments is that each case will be different and therefore, in order to be effective, each TPIM will need to be tailored to the individual concerned. With that additional information and explanation, I hope that my noble friend will feel able to withdraw her amendment.

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[Baroness Ludford (LD)]

My Lords, the amendment stands in my name and those of my noble friends Lady Hamwee and Lord Paddick. I shall speak also to Amendment 77. In this grouping, there is also Amendment 78 of the noble Baroness, Lady Smith of Basildon.

The Explanatory Notes refer to data that are “necessary” to attribute internet protocol addresses to a person or device. However, that word does not appear in the Bill; I believe that something similar happened in the draft Communications Data Bill in 2012, which was picked up by the committee on the draft Bill. There is a tendency to put “necessary” in Explanatory Notes but not to transfer that to the Bill. Amendment 76, therefore, at least seeks to apply the test of “necessary” to communications data that could,

“assist in identifying, which internet protocol address … belongs to the sender or recipient of a communication (whether or not a person)”.

At least it tightens up, somewhat, the scope of communications data—relevant internet data—required.

I have seen an itemisation of possible data—I confess that I do not know what the origin was, but it refers to possible data which would be required to be retained. I state just for interest that it includes,

“account-to-IP address mappings for broadband … source IP address and port for NAT on mobile and cloud networks … MAC addresses on cloud WiFi networks … source port information in server logs”,

and:

“MAC addresses from end-user equipment”.

This is above my technical pay grade and I think we need some clarity about what sort of information is being required. Therefore, in Amendment 77 we are requesting that when the term “other identifier” is used, meaning an identifier used to facilitate the transmission of a communication, what qualifies as “other identifier” should be specified in regulations made by the Secretary of State.

I have seen it cited that there has been consultation with industry on these matters. Certainly, the Internet Services Providers’ Association has complained that it was not consulted on this section on the collection of IP addresses. It posted something on its website on 24 November, so something may have happened in the intervening two months, but it certainly felt at that time that it had not been consulted. Of course the association would be qualified, as the experts, which I am not, to know what is being talked about here and what is, indeed, necessary and essential to identify an IP address.

I mentioned at Second Reading that the Bill refers to,

“the sender or recipient of a communication (whether or not a person)”.

I still believe that it is somewhat misleading to suggest that a person can be identified from an IP address. Even with a static IP address allocated to a particular device or subscriber, you would at best know who the subscriber was, but you would not necessarily know who was using the device at a particular time. It may not have been the subscriber; it may have been a friend, a relative or a business associate. If it is a dynamic IP address I understand that there can be tens of thousands of people who could have used it. Even with this other information, even if you can identify the device that was using it at 4.12 pm on a Tuesday afternoon, it is still not clear that you can, of itself, then identify the person using it. You would need other investigations—police investigations—to ascertain who precisely was using the device.

I hope that I have conveyed the meaning of Amendments 76 and 77, which seek to put greater precision into the Bill as to what further communications data are being required to be kept.

[Lord Rosser]

My Lords, our Amendment 78 in this group seeks to make it explicit that the extra data retention provided for in Clause 17 does not extend beyond that which is necessary for the purpose of identifying a user from the internet protocol address. The amendment is not meant to impact on the rest of the Data Retention and Investigatory Powers Act.

Clause 17 amends the definition of “relevant communications data” in the Data Retention and Investigatory Powers Act 2014. The clause expands the definition of “relevant communications data” to include an extra category of data—described as “relevant internet data”—in Section 2 of the DRIP Act, to allow the Secretary of State to use powers under Section 1 of that Act to bring in regulations to ensure that this “relevant internet data” is retained by communications service providers. Essentially, the Government are using this fast-track primary legislation to amend emergency primary legislation from last July to enable the Secretary of State to bring in secondary legislation relating to a clause in this Bill, which extends the current provision on data retention.

Counter-Terrorism and Security Bill

Lord Rosser Excerpts

Tuesday 20th January 2015 Lords Chamber

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

My Lords, the Government have tabled this amendment to provide that civil legal aid may be made available at hearings of applications to extend the 14-day time period in which an individual’s travel documents may be retained in England and Wales. This issue was raised by my right honourable friend Dominic Grieve in Committee on 15 December and it is a matter in which the Joint Committee on Human Rights has expressed an interest.

Legal aid for judicial review is already available in England and Wales, subject to the statutory means and merits test, including for legal challenge by those subject to the temporary passport seizure power. However, this amendment is necessary to ensure that, subject to the means and merits test, civil legal aid may be made available in relation to applications to extend a temporary passport seizure to a district judge—magistrates’ courts— in England and Wales, as set out in paragraph 8 of Schedule 1 to the Bill.

The Scottish Government have confirmed that civil legal aid is already available in Scotland under the Legal Aid (Scotland) Act 1986. The secondary legislation which sits under that may require some amendment and that will, of course, be taken forward through the Scottish Parliament. We are speaking to the devolved Administration in Northern Ireland about whether civil legal aid is already available there, subject to the statutory means and merits test, for individuals subject to the power in that jurisdiction. If an amendment is necessary to cover the availability of legal aid in Northern Ireland, we will bring one forward in due course.

Amendment 1 will amend Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO for short. It will add the provision of legal aid in the proceedings set out in paragraph 8 of Schedule 1 to the Bill as a form of civil legal services for which legal aid may be made available in England and Wales. The matters covered are subject to all the exclusions set out in part 2 of Schedule 1 to LASPO. The amendment also ensures that advocacy before a district judge—magistrates’ courts—may be included in the civil legal aid that may be made available for these proceedings by amending Part 3 of Schedule 1 to LASPO.

The amendment does not alter the statutory means and merits test, nor does it make civil legal aid available for any other civil legal services in England and Wales. The Government consider that an amendment to the scope of the civil legal aid scheme in England and Wales is appropriate in these circumstances due to the important nature of the proceedings set out in paragraph 8 of Schedule 1 to the Bill, the limitations on an individual’s ability to present their own case in these circumstances and the absence of an alternative route to resolution. I beg to move.

[Lord Rosser (Lab)]

My Lords, as the Minister has said, the amendment provides for legal aid for proceedings before a district judge in the light of an application for an extension of the 14-day period. We fully support the Government’s change of heart on this point about legal aid. As the Minister mentioned, the amendment states that its provisions are subject to the exclusions in Parts 2 and 3 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So that we are clear on exactly what those exclusions mean, it would be helpful if the Minister could clarify what their impact would be in reality, in respect of legal aid being provided, or not, in applications for an extension of time for retention of travel documents, which is the issue covered by the amendment.

[Baroness Hamwee (LD)]

My Lords, I too am glad that the Government have addressed the matter of legal aid. There was clearly going to be a call for that. My question, which is a sort of prequel, is about whether advice would be available to a traveller at the point when travel documents are seized and retained. Legal aid is becoming confined to proceedings rather than advice, but this is an important point in the whole process.

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Moved by

[Lord Rosser]

2: Clause 1, page 1, line 8, at end insert—
“( ) This section shall be in force for two years from the date of the passing of this Act and shall operate thereafter subject to an affirmative resolution in each House of Parliament.”

[Lord Rosser]

My Lords, Amendments 2 and 55 provide for the new powers in the Bill to seize travel documents, including passports, from individuals thought to be leaving the country for purposes related to terrorism and the power to place an individual on a temporary exclusion order in order to provide for what the Government have described as a managed return to cease two years from the date that this Bill becomes an Act unless both Houses have passed affirmative resolutions providing for the powers to continue in force until a later date.

The powers in question in the Bill would enable immigration officers, customs officials, qualified officers and senior police officers to take a passport away from an individual and leave them in a situation where they were no longer a passport holder for a period of 14 days or, following a court review, 30 days. The powers in the Bill also provide for the Home Secretary to make whatever arrangements he or she thinks appropriate in relation to the individual concerned during the period when they have no passport or on that period coming to an end.

The temporary exclusion order requires an individual not to return to this country unless that return is in accordance with a permit issued by the Secretary of State prior to the commencement of the journey back or, alternatively, the return is the result of the individual’s deportation to this country. As the Bill says, the effect of the temporary exclusion order while it is in force is that the issue of a British passport to the excluded individual while he or she is outside the United Kingdom is not valid. These two measures in the Bill as it stands will be as permanent as any other legislation passed in this House which likewise does not contain a clause providing that it ceases to have effect on a certain date unless both Houses have passed resolutions before then providing for it to continue.

The reason for these new powers being sought is that the security situation has deteriorated, particularly as a result of some hundreds of people leaving this country, often at very short notice or unbeknown until a very late stage by family or friends, to join up with, or otherwise become involved with, terrorist organisations, not least in Syria and Iraq. The power to take away the passport and other travel documents is to give the authorities an opportunity to make inquiries about an individual in question and their intentions, and within 14 days or 30 days decide whether to return the passport or travel documents or take another course of action. The power to invalidate an individual’s British passport while a temporary exclusion order is in force is to enable that individual’s return to this country to be made subject to complying with terms determined by the Secretary of State.

It may be that it is the Government’s view that the worsening in the security situation as a result of individuals leaving the country to engage in terrorist activity, or subsequently seeking to return, is effectively a permanent development. If that is the case, it would be helpful if the Government said so. If it is not their view, there is a real danger that this measure, which, presumably, most if not all would prefer it had not become necessary to enact, will remain on the statute book long after it is really needed. Governments of all political colours and relevant authorities do not always willingly give up powers—in this case significant powers in relation to retention or invalidation of passports—which they might feel, even after the immediate need has passed, could still come in useful at some time in the future.

The purpose of our amendments is to ensure that there is a proper debate on the need for these powers to continue, in this case, beyond a period of two years from this Bill becoming an Act. The knowledge that Parliament has to agree will help concentrate minds on whether the case still exists, which it may well might, and will at least ensure that the measures which are being introduced in the light of a particular security development in respect of people from this country travelling to engage in terrorist activity or subsequently returning from such activity or involvement does not continue on our statute book longer than the national security situation demands. I beg to move.

[Lord Phillips of Sudbury (LD)]

My Lords, I strongly support Amendments 2, 3 and 4. The measures contained in the Bill are of fundamental importance, but they are extremely difficult to construct in a way which holds an appropriate balance between state security and individual liberty. The notion in the amendments that the outcome of what we are doing should be reviewed by the independent reviewer within two years and put to Parliament is eminently sound. My only query is whether or not the role of the independent reviewer in looking over the consequence of this part of the Bill might not be better addressed to the whole of it. There are other parts of the Bill whose outcomes are no less difficult and problematic to anticipate. I hope the Government will give a positive response to these amendments.

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[Lord Bates]

I see the distinction between the issues—as did the other place and the Constitution Committee. But in this area, we believe that a sunset clause is not necessary in relation to this chapter of the Bill. In other parts, such as Part 2, when we will come to TPIMs, the sunset clause is there. It is not a general principle written through the Bill; we are looking at this area by area, and we remain open to advice from your Lordships’ House, Parliament and the independent reviewer as to what their thoughts are on the necessity of that.

People have not happened upon the sunset clause up to now because they have found it too difficult to arrive at a precise point for where the amendment should be. Should it be at two, three or four years? We have heard a range of different discussions. It remains there, open to review, and the procedures will be subject to regulations, which will give rise to further debate and scrutiny, but it is not appropriate to offer a fixed and arbitrary time limit for this chapter of the Bill.

[Lord Rosser]

I thank all noble Lords who have taken part in this debate. I have not been sitting here counting up the numbers but I have a feeling that there was rather more support for the general thrust of my amendment than opposition to it. Obviously, I am grateful to the Minister for saying that he will take away what has been said today and reflect further on it—without, I accept, making any commitment to come back with a change—and I am grateful to him for saying that he will look at the matter in the light of the comments that have been made today.

I have to say that I find a little odd the Minister’s comment at the end that the problem was—at least this is how it came over to me—how long should it be before the powers cease unless they are continued by affirmative resolution of both Houses? I have been asked the question; I am not wedded to two years. If it is possible to have discussions and come to an agreement on another period that might gain wider support, the issue at stake is that there should be, after a certain period, a look at whether we still need these powers in force, in view of the fact that they are quite significant new powers. If the issue that the Government have is determining the appropriate length of time—because, after all, not to put anything in the Bill in a sense determines a period of time; that is, there is no review at all—I hope that the Minister will be willing to have discussions on that point.

We have already had different views expressed about the message that the powers ceasing to continue after a certain period, unless renewed, sends. I am afraid I rather subscribe to the view that the message that it sends if you do not have it in is that these powers could continue, metaphorically speaking, for ever and a day, although I appreciate that another view has been expressed that they might be seen as a sign of weakness on our part. As I say, that is not a view to which I subscribe. I do not think that reviewing the need for the continuation of these powers is a sign of weakness at all because obviously there is a distinct possibility that in looking at the situation one might decide that the powers should be renewed.

We have also had a discussion about the role of the independent reviewer, which presumably will be discussed in the next group of amendments. Of course, the issue of the sunset clause covers the question of the current worsening of the security situation, with people from this country going abroad, apparently to engage in acts of terrorism, and subsequently returning. That involves the two issues we are talking about: passports and temporary exclusion orders. I say only to the Minister that within not too long a period of time—although I am flexible about what that should be—the problem arising from people going from this country to engage in terrorism and seeking to return may be a lesser problem than it is now, as opposed to other issues related to terrorism still being fairly high up the list.

That is what the proposed sunset clause deals with: specifically, people going from this country to engage in terrorism and subsequently coming back. It is because we consider it a problem at present that we are talking about and supporting the powers in the Bill. But it is conceivable that, over not too long a period, that specific point may not be the problem it is at the moment, and we ought to have some powers in the Bill to be able to reflect on whether the case is still there for continuing the powers that we are talking about today.

As I say, I am grateful to the Minister for agreeing to reflect further and to all noble Lords who have taken part in the discussion. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Moved by

[Lord Rosser]

3: Clause 1, page 1, line 8, at end insert—
“( ) The Secretary of State shall commission an annual report to be laid before each House of Parliament by the Independent Reviewer of Terrorism Legislation on the exercise of powers contained in this section.”

[Lord Rosser]

As mentioned in the debate on the previous amendment, the group of amendments to which Amendment 3 belongs requires the Secretary of State to commission an annual report to be laid before both Houses by the Independent Reviewer of Terrorism Legislation on the exercise of the powers contained in Chapters 1 and 2 of Part 1 and in Part 2, which relate to the seizure of travel documents and temporary exclusion from this country. The amendments also require the Secretary of State to publish annual figures on the usage of these powers, and for an annual review of the arrangements made by the Secretary of State under the powers in paragraph 14 of Schedule 1 to be published and laid before both Houses.

I think I am right in saying that in its recent report the Joint Committee on Human Rights drew attention to the fact that neither of the new powers in Part 1 concerning the seizure of passports and managed return are made subject to independent review. It seems that the Minister told the JCHR that the Government had considered independent review, but apparently they were satisfied that any review of the extensive new powers in Part 1 should not extend beyond that carried out by parliamentary Select Committees. The Joint Committee on Human Rights referred in its report to the fact that the Independent Reviewer of Terrorism Legislation had commented on this issue, saying that if the powers we already have under the Terrorism Act need independent review, then surely the new powers in Part 1 also need independent review. It could be said that if that review took place it might help to inform a discussion on whether the powers needed reviewing if there was a sunset clause in the Bill. The Joint Committee on Human Rights said that, like the Independent Reviewer of Terrorism Legislation, it believed in principle that the operation in practice of the new powers to impose restrictions on the travel of terrorism suspects should be subject to independent review, and therefore it was recommending that the powers in Part 1 concerning passports and managed return should be subject to review by the independent reviewer.

In moving Amendment 3, I am also speaking to the other amendments in this group. I hope that the Minister will be able to give a positive response to them.

[Baroness Hamwee]

My noble friend Lord Carlile has already referred to the fact that the independent reviewer can, does and did look at far more than is spelled out in statute. My inclination would be to spell that out, but to spell out that the independent reviewer’s powers extend to all terrorism legislation. I have half a clause drafted to that effect for later in Committee stage. That does not mean to say, as these amendments suggest, that that should necessarily be annual. It may need to be done more than annually. Some legislation—I think it is the asset-freezing legislation—requires quarterly reports. As time goes on, subject to the eventual decision about a sunset clause, it may be not so necessary to report as frequently. Perhaps more importantly, I would prefer that a report was not subject to commissioning by the Home Secretary. A future Home Secretary might decide not to commission a report, and we can all see where that might go.

This is an important issue. I am glad that it has been raised, and it has been covered quite substantially already this afternoon. I am not convinced that this is quite the way to go about it. We need to look at the comments made by David Anderson on the scope of the role and the balance between its constituent parts, and not pick bits off in individual parts of the Bill.

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[Lord Rosser]

Once again, I thank all noble Lords who have taken part in this debate. I hope that if I have misunderstood, the Minister will immediately put me right, but, as I understand it, he is saying that the Government will look at the issue of independent review of these parts of the Bill, or how that might be done, as part of discussions we will have on a later section of the Bill. Have I understood that correctly, or have I misunderstood it?

[Lord Ashton of Hyde]

The noble Lord has understood it correctly. We will discuss these matters further in Part 7. I also said separately that we are considering the report of the Joint Committee on Human Rights.

[Lord Rosser]

I thank the Minister for that clarification. Obviously, I am very grateful to him for his comments, which are extremely helpful. I will withdraw my amendment in a moment, not least in the light of his very helpful response.

I hope that the noble Baroness, Lady Ludford, will not mind if I do not give a detailed response to her question. However, I will look at the issue she raised about some of the amendments that we have tabled. In the short time since she raised the point—obviously, I was trying to listen to what was said in the debate—I have not had a chance to do so. Clearly, if they are wrong, that has been a slip-up on our part. However, I will have a look at the wording to see whether I share her view that that may be the case. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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[Lord Rosser]

My Lords, we have Amendment 16 in this group. Paragraph 4 of Schedule 1 deals with authorisation by a senior police officer for retention of a travel document. The travel document could, of course, be a non-UK passport. The purpose of our amendment, which provides for the relevant embassy to be informed immediately if a travel document is being retained, is to ascertain how the Government intend to manage the seizure of non-UK travel documents and the individual concerned, including where there is dual nationality.

Bearing in mind that the individual in question, who will presumably be a foreign national, will be unable to leave this country for a period of time, who or what will be informed of this who would not have been so informed if the individual in question was a British national with a British passport? If the country of which the individual concerned was a national became aware, or was made aware, that the passport had been retained and travel denied, would we, if that country so requested, prevent the individual travelling until it had carried out and implemented the kind of measures and procedures which we are providing for under the temporary exclusion orders?

If we were satisfied that the foreign national in question whose passport had been retained was seeking to go to another country, which was not their own, for purposes associated with terrorism, what action might we take? Would we consider legal proceedings against them in this country; would we deport them back to their own country; or would we allow them subsequently to continue on their way to wherever it was they were going?

This is very much a probing amendment to find out how the Government would manage the situation, or what actions they would take in relation to the seizure of non-UK travel documents and the individual concerned. I hope that the Minister will clarify some of the issues that I have raised, as well as those raised by the noble Baroness, Lady Hamwee.

[Lord Bates]

My Lords, I am grateful to my noble friends Lady Hamwee, Lord Thomas and Lady Ludford for tabling Amendment 5 and for providing advance notice of their amendments. The debate on this group has also concerned Amendment 16, tabled by the Opposition, and to which the noble Lord, Lord Rosser, has spoken. I will seek to address the issues that both amendments raise.

Amendment 5 would amend the definition of a passport to exclude,

“a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom”.

It would prevent police officers and designated Border Force officers exercising the power against individuals travelling on a foreign passport. This would mean that the police could not use this power to disrupt the travel of foreign nationals they reasonably suspected to be travelling overseas for terrorist-related activity. In the case of British citizens with dual nationality, the amendment would have the effect that the person’s British passport could be seized but their foreign passport could not. I accept the probing nature of the amendment, and I am sure that my noble friend is aware of that point but is seeking to elicit further information and reassurances.

The increasing number of people leaving the UK and Europe for the purpose of engaging in terrorism-related activity overseas—and returning with enhanced terrorist-related capabilities—means that we need proportionate powers to counter the real threat that we face from terrorism at home and abroad. This power will send out a robust message to anyone considering travelling to and from the UK for the purpose of involvement in terrorist activities.

It would not be appropriate—indeed, it may unlawfully discriminate against British citizens—if the police were able to use this power against British citizens suspected to be travelling overseas for terrorist-related activity but unable to use this power to disrupt the travel of foreign nationals. The power therefore applies to British citizens and foreign nationals, including European Economic Area nationals. Databases at a port would be updated to disrupt any further attempts at travel for the period in which the travel documents have been retained.

Passports are the property of the issuing authority—my noble friend sought clarification on this—and it is an International Civil Aviation Organisation, ICAO, standard for the issuing authority to be shown on the passport. There is no legal requirement to inform other issuing authorities when passports are seized or surrendered in other circumstances, such as to meet bail conditions. That would be the same for a British national in another country subject to similar actions.

Amendment 16 would require the police to inform the relevant embassy or high commission if the police exercised the power at Schedule 1 against their country’s citizens. If a foreign travel document is seized under this power, we will consider whether to notify the Government concerned on a case-by-case basis. In some cases, there could be concerns about the consequences for an individual if information like that is made available. Individuals affected can, of course, if they choose, seek consular assistance from their Government’s representatives here.

Foreign Governments are not routinely notified when their passports are seized or surrendered in other circumstances, such as under Schedule 7 to the Terrorism Act 2000, when a passport can be held for up to seven days for examination purposes, or when an individual subject to a terrorism prevention and investigation measure is prohibited from possessing a travel document.

My noble friend Lady Hamwee asked about the definition of travel documents. Our definition is anything that is or appears to be a passport, ticket or another document that permits a person to make a journey by any means from within the UK to outside the UK. It would include, for example, a boarding pass. A passport means a UK passport or a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom or by or on behalf of an international organisation or a document that can be used in some or all circumstances instead of a passport.

I was asked whether the power applied to diplomatic passports. Under international law and treaty diplomats may enjoy certain immunities. This power cannot be used to breach one of those. I think that is fairly clear.

The noble Lord, Lord Rosser, asked whether we would return a foreign national’s passport to their country, if it was requested. Passports are the property of the issuing authority, as I have already mentioned. There is no legal requirement to inform issuing authorities when passports are seized or surrendered. If the issuing authority requested it to be returned, we would consider whether it was appropriate to do so. In most circumstances we would expect to return it unless it was required, for example, as evidence in connection with a prosecution.

I have tried to answer the points of what I know were probing amendments. I hope with those bits of explanation and justification my noble friend will feel free to withdraw her amendment.

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Moved by

[Lord Rosser]

8: Schedule 1, page 28, line 3, leave out “reasonable grounds” and insert “evidence or intelligence”

[Lord Rosser]

My Lords, my amendments in this group are Amendments 8, 14 and 15. Amendment 8 provides that, for the powers relating to search and seizure in respect of travel documents in paragraph 2 of Schedule 1 to be exercised, a constable must have “evidence or intelligence” to suspect that the person in question is there with the intention of leaving this country for the purpose of involvement in terrorism-related activity rather than “reasonable grounds” as provided for in the Bill.

This power of seizure of travel documents in this way is a new one and is presumably expected to be exercised only where the relevant authorities have either some hard evidence in respect of the individual whose travel documents they intend to retain or intelligence of a nature which they believe, bearing in mind its nature and source, may well prove accurate.

The Bill does not make provision for the person whose passport is seized to be informed, even in outline, of the reasons for the authorities suspecting that they may wish to travel abroad for purposes associated with terrorism and neither does the draft code of practice require a person who is subject to the exercise of the power to search for and seize travel documents to be told anything about the reasons underlying the suspicion that the person is intending to leave the country for the purpose of involvement in terrorism-related activity.

It is important that this new power should be exercised, as I have no doubt whatever is the intention, in a responsible and proportionate manner. The question is this: what do the Government intend the phrase “reasonable grounds” to mean if it does not mean suspicions based on evidence or intelligence? If it does mean that, why not say so in the Bill? No doubt the Minister will address that point in his reply.

Amendments 14 and 15 provide that an individual whose travel document has been removed may appeal against this decision in the courts over the evidence on the basis of which the conditions in paragraph 2(1)(a) and (b) of Schedule 1 were met. Those conditions relate to suspicions that the person is leaving the country for the purpose of involvement in terrorism-related activity or has arrived in this country with the intention of leaving it soon for that purpose. The use of these new powers of seizure of travel documents, including passports, will no doubt be undertaken in an appropriate, reasonable and proportionate manner. But since the tests as set out in the Bill are to be ones of “reasonable suspicion”, there is inevitably scope for genuine mistakes to be made on occasion. Our amendments provide for a right of appeal in court following the temporary seizure of a passport, initially for up to 14 days, over the reasons which led to that administrative decision under the terms of the Bill, a decision which, if wrong, could have significant implications for a person who found themselves, because of that decision, unable to travel outside the country for a period that could be up to 30 days. No doubt if further information had come to light in the mean time prior to the appeal which either strengthened or weakened the case for the original decision to seize the travel documents, that would also be placed before the court. Judicial review alone would not achieve this objective since it would not enable the person whose passport had been seized to challenge directly the basis on which the power had been exercised; namely, whether there were reasonable grounds to suspect that they intended to leave the country to become involved in terrorism-related activity.

It is of course the case that under the Bill the police have to apply to a court for an extension of time up to a maximum of 30 days if they wish to retain the seized travel documents beyond the maximum of 14 days laid down in the Bill. However, the court making that decision is not reviewing the reasons that led to the decision being made to seize the travel documents, but simply whether the authorities considering whether further disruptive action should be taken against the individual concerned had been acting diligently and expeditiously. An authorisation process of the decision to seize travel documents will exist up to the level of chief constable, but there is no provision within that process for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. That authorisation process surely cannot be regarded as an alternative to a right on application to have the decision to seize travel documents reviewed by a court. I hope that the Minister will be prepared to consider carefully the points I have made in support of my three amendments. I beg to move.

[Lord Hope of Craighead]

My Lords, I should like to say a word about Amendment 8. With great respect to the noble Lord, Lord Rosser, I think that the phrase used in the Bill, if it is properly understood, accommodates the point he is seeking to raise. I speak about this with a certain amount of background because the very first judgment I was asked to write when I began my career as a Lord of Appeal in Ordinary in this House was in a case called O’Hara against the Chief Constable of the Royal Ulster Constabulary, reported in 1997 as Appeal Case 286. What we had to do in that case was consider the meaning of the phrase. A bit of research revealed that it has actually been with us for something like 100 years and has been used repeatedly in measures such as the Public Order Act 1936 and other measures where a constable is being asked to take a decision as to whether to exercise a power of search, entry or something of that kind. That situation is analogous to the one we are contemplating in regard to the position of the constable under this schedule.

What, then, do the words mean? As we said in the judgment, they concentrate on what was in the mind of the constable at the time that he exercised the power. But it is important to appreciate that there are two aspects to what was in his mind. One is what we described as the subjective aspect, which is whether he formed a reasonable suspicion. However, the important point, which is a reply to the noble Lord, Lord Rosser, is that there is also an objective element, because he has to be able to say what the objective element was. There must have been reasonable grounds for the suspicion that he formed. They are the grounds that were in his mind at the time when he was judging whether they were reasonable. That is directed to the information that he had when he decided to do what he did. That raises certain questions. What was his information? Where did it come from? What was its content? How could one say whether it was reliable? In particular, who imparted the information to him?

These are the kind of questions that anyone examining the issue would wish to have answers to. The point is not so much whether the information was true or not, because that is not something that the constable can judge at the time. The point is what information did he have and did it include information that purported to be intelligence, which is the kind of point that the noble Lord was raising.

Properly understood, this phrase, which every constable is trained to understand, and the courts are well used to, is really able to accommodate the point quite adequately, and I suggest that the safest course is to stick to the familiar phrase, given the import of the phrase as understood and as explained in the case of O’Hara.

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[Lord Bates]

I am happy to expand further on that but, effectively, the justification I referred to was that the police officer would have had to have arrived at a position where he believed that there was a reasonable suspicion, and that the reasonable grounds test had been met. He would then have to justify that to a senior officer of the rank of superintendent or above and then, after 72 hours, that would have to be a chief superintendent and it would have to go to the chief constable, so it was in that setting that I was referring particularly to the justification rather than gisting.

[Lord Rosser]

I thank all noble Lords who have taken part in this debate and thank the Minister for his very full reply which, as the noble Baroness, Lady Hamwee, has already commented, will probably need to be read through fairly carefully in Hansard to make sure that the different points that he made are fully digested. As I understand it, based on the Minister’s reply, the Government do not have any intention of going down the road of either my Amendments 14 and 15 on judicial oversight or, indeed, of the proposition made by the Joint Committee on Human Rights, which was of a different nature but clearly addressed the same issue. I think I am right in saying that the Government are not making any movement at all in the direction of either my amendments, or, indeed, the views of the Joint Committee on Human Rights. Have I understood that correctly?

[Lord Bates]

My Lords, the noble Lord seeks to draw me on this. This is the Committee stage of a very important Bill and we are very much listening and reviewing your Lordships’ comments. I am inviting the noble Lord to withdraw his amendment and therefore, obviously, signalling that we are not comfortable with it as it stands.

[Lord Rosser]

I give the assurance now that I intend to withdraw the amendment, so there is no need for the Minister to think that I am about to test the opinion of the Committee, if that is what is running through his mind. I was seeking to ensure that I had correctly understood the thrust of his reply on behalf of the Government, which I think I have interpreted correctly. I suppose that we can all wait in hope that the Government may change their mind, but the Minister did not say that he intended to reflect on the points that were made in the debate today, as he did in relation to other groups of amendments, so I think, for that reason alone, one puts a rather different interpretation on what he said on this group from the interpretation that one might justifiably put on what he said in response to previous groups.

I do not think that we have moved any further on the issue of people being given some indication of the reasons for the powers that be having suspicions that they intended to leave the country for the purpose of involvement in terrorism-related activity. I will need to read Hansard, but I thought that the Minister said that it was open to an individual to make representations at any time, including on seizure, but perhaps I misunderstood what he said. If he did say anything along those lines, I was going to ask him exactly what representations and to whom, but perhaps I misunderstood the reply.

I think that we have different views about what can and cannot emerge as a result of judicial review, since I think the Minister was of the view that somehow that contained a power to review the grounds on which a decision had been made as opposed to not being able to look at that issue, which is my understanding of what judicial review would involve. It would not encompass that question. However, once again, I will read carefully what the Minister said.

We then had the comments in relation to the application to court to extend the period from 14 days up to a maximum of 30 days. Once again, as I understand it, that court is considering only whether the authorities are acting diligently and expeditiously and is not considering the reasons behind the decision—that is, the reasons behind the suspicion. So, in that sense, we do not seem to have moved any further forward in the light of the Minister’s reply. Likewise, I do not think that he responded to another point I made, although I did not specifically ask him to do so. I simply made the statement that, under the authorisation process, there is no provision for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. As I say, I do not think that the Minister commented on that, so I assume that my version is correct and that there is no provision for them to consider representations. So I think the point of view of those who have tabled the amendments must be that they have not made any progress so far. However, as I said, I will want to read carefully the Minister’s response, as I am sure will all other noble Lords who have taken part in this debate, in order to ensure that we have fully understood it. In the mean time, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

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[Baroness Hamwee]

Amendments 22, 42 and 43 in this group are also in my name, and Amendment 11 is in the name of the noble Lord, Lord Rosser.

Amendment 9 has rather an automatic, almost knee-jerk—or perhaps wrist-jerk—wording that anyone who has dealt with contracts for more than five minutes is likely to produce; namely, if something is in someone’s possession, does that adequately cover the situation or do you need to refer to the item as being under that person’s control? Again, this issue is about workability. I raised it with the Bill team some two or three weeks ago, before Christmas, and asked what would happen if it were not the individual but a companion who was holding the travel documents, and what powers would be available to get at those documents. When people are travelling as a pair or in a group, an individual does not always carry his own documents at every point. I understand that the amendment’s wording is wide enough because I think that the documents must always come into the individual’s possession, but I thought that it was worth getting clarity on that in Committee.

Amendment 22 seeks to amend paragraph 6(4). That paragraph states that on reviewing the retention of travel documents:

“The relevant chief constable must consider those findings and take whatever action seems appropriate”.

That is a wide phrase and I do not think the Minister will be surprised that my point boils down to whether he can share with the Committee what is anticipated to be within the range of “appropriate” and how this will be dealt with. Will it be covered by guidance, a code of practice and so on?

My other amendments in the group, Amendments 42 and 43, concern the perception of discrimination in the exercise of these powers—an issue that I have already raised today. I accept that this is an immensely difficult area; I have referred in the amendments to training, including equalities training, and recording the performance of the exercising of the powers. The latter is certainly covered by the draft code, which I saw after I had tabled the amendment. However, I will probably not be the only Member of the Committee who is aware of concerns about discrimination or who has received from one organisation a copy of a briefing to its members to make representations to MPs. It says:

“The proposed legislation could bear serious consequences for British Muslims including”,

and lists a number of items. It then states:

“This is a deeply troubling piece of legislation for British Muslims and will change our lives forever it is passed in its current form”.

I have no easy answer on how to deal with this but the Government must, I am sure, have been considering the perception, particularly in the light of the fact that those against whom it is sought to exercise those powers are likely—that may be the wrong word—to come disproportionately from Muslim communities. I felt that the matter had to be aired for us to seek some reassurance, which I hope the Minister will be able to give. I beg to move.

[Lord Rosser]

I have Amendment 11 in this group, to which I wish to speak. Schedule 1 includes the procedure for the authorisation by a senior police officer for the retention of a travel document, and states in paragraph 4:

“The document may be retained while an application for authorisation is considered. Any such application must be considered as soon as possible”.

The effect of my amendment, which is more a probing amendment, is to provide a time limit within which the application for authorisation must be considered—namely, within 12 hours—rather than leaving it somewhat open-ended, as provided for in the Bill.

No doubt, the Minister will indicate in his reply why it was felt desirable not to lay down a specific maximum time limit but to leave the provision without any time limit at all by using the phrase “as soon as possible”. The length of time taken for the application for authorisation to be dealt with is presumably—although I should be grateful if it could be confirmed or otherwise—in addition to the period during which the travel document can be seized, as laid down in the Bill. If that is the case, it is important that such authorisations are not delayed but are dealt with expeditiously. How long do the Government believe it will take for applications for authorisation to be considered, and how long do they consider is reasonable in that context? Who will decide whether it has been dealt with as soon as possible? Who can take any action, and through which channels, if they consider that the application has not been dealt with as soon as possible? How will they obtain the evidence for that?

I was going to ask the Minister: in what circumstances do the Government envisage that it would not be possible to consider an application within 12 hours? It may be that he will say in reply that he considers that an application should be dealt with in considerably less time than that but, bearing in mind my amendment, which aims to find out more about the reasons for the government wording, it would be helpful if the Minister could say what kind of factors leading to a delay—for example, beyond the period laid down in my amendment —the Government would believe were still compatible with dealing with the application as soon as possible. I hope that he will respond to these points, either now or subsequently.

Counter-Terrorism and Security Bill

Lord Rosser Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I do not wish to detain the House for too long, frankly because of the hour. Secondly, I am not sure for how long my voice will hold up. This has been a calm and measured debate on an issue that can and does arouse diverse and very different reactions. We have heard from nearly 40 Members of your Lordships’ House with considerable knowledge of the issues addressed in the Bill, including two thought-provoking maiden speeches approaching the subject of counterterrorism and security from different standpoints and experiences. I hope it will not be too long before we are able to hear again from the noble Lords, Lord Evans of Weardale and Lord Green of Deddington, when they will no longer be constrained by the accepted conventions applicable to maiden speeches.

Inevitably, the recent atrocities in France have played a part in this debate. However, the Bill is not of course a response to what happened in Paris, although no doubt many feel that what happened there has underlined the case for it. The Bill relates to counterterrorism and security issues in this country, and sets out the measures and changes that the Government are asking this House to agree to in addition to existing statutory revisions. However, we are not alone in having faced and continuing to face the reality and prospect of terrorist acts. Pakistan, Australia, India, Canada, Belgium, America, and of course France, to name just some countries, have been and potentially still are in a similar situation to us. Home Office Ministers have previously referred to the 40 or so terrorist plots that have been disrupted since the attacks in London in July 2005, and 2013 saw the first terrorist-related deaths in this country since 2005. We know that there is a very real prospect that British nationals, following involvement with terrorist groups in Syria and Iraq, will seek to persuade others to go down the same route or will carry out attacks here, or both.

The Government have said that they believe that about 600 people of interest to the security services have travelled to Syria, with about half having already returned to the United Kingdom, some of whom pose a significant threat. The problem is not unique to the United Kingdom: the United Nations estimates that foreign fighters from 80 countries may be in the region, mainly fighting for ISIL. Over the past five years or so, more than 800 people have been arrested for terrorism-related offences, more than 200 have been charged, and nearly 150 have been successfully prosecuted. Last year alone, the Metropolitan Police made some 270 arrests following counterterrorism investigations, and with other agencies it has disrupted several attack plots.

The recent Intelligence and Security Committee report set out the serious challenges our security services and police face in keeping us safe, and they deserve our gratitude and thanks. As my noble friend Lady Smith of Basildon said at the beginning of this debate in setting out our position on the Bill, we agree that the terror threat has grown, and we will support the Bill because it responds to new and changing threats and addresses some past mistakes, not least on terrorism prevention investigation measures. The Government have at last recognised the need to restore relocation powers, the abolition of which led to the effective demise of TPIMs for those extreme cases where prosecution cannot be successfully pursued but the threat continues.

However, there is a need to examine closely the detail of the provisions in the Bill and to ask: whether what is proposed will in each case achieve the stated objective; whether the stated objective is clear, unambiguous and proportionate in the light of the situation we now face; and whether there are sufficient checks and balances in place to prevent powers which should be proportionate from being abused and discredited, thus undermining the fight against extremism. A number of the contributions today have homed in on one or more of those considerations, and a number of concerns have been expressed. It is for the Government to seek to allay those concerns, either in their response to this debate today or, probably more realistically, during the further stages of the Bill’s consideration.

One such concern which has already been raised is in connection with the provision in Part 5 for a new statutory duty on certain bodies, including local authorities, schools, colleges and universities, to have due regard to the need to prevent people being drawn into terrorism. I doubt that too many people would disagree with that as an objective, but there is a need for the Government to be clear about exactly what powers the Bill gives to the Secretary of State, who will be able to make a direction to one of the bodies covered by that power, such as a university, if it is deemed to be failing to exercise its statutory duty. The Government also need to state clearly what a body would have to do to show that it had met a duty to have regard to the need to prevent people being driven into terrorism. When asked in the other place if she envisaged the Home Secretary making a direction in order to tell a university or institution not to allow somebody to speak, the Home Secretary replied that that was not the intention of that power of direction. The question that does need to be answered, though, is whether the Government consider that a Home Secretary could make such a direction, under the powers in Part 5.

There will also be a need for the Government to provide more detail on exactly how the proposed temporary exclusion orders will work in practice, bearing in mind that they will be dependent on the co-operation of other countries, which will presumably also have to be acting within the provisions of their own laws, and international law. It is not clear at the moment just how practical or otherwise, or how bureaucratic or otherwise, the proposed arrangements for what the Government describe as a “managed return” will be, how long it is envisaged that those covered by the proposed arrangements could be detained, or even if they will be detained on foreign soil, pending their being allowed to travel back to this country.

The Government appear to have changed tack on the issue of judicial oversight of the temporary exclusion order power, following pressure on this point in the other place, although the Home Secretary may have left the door ajar to not doing anything, since she said in the other place last week that,

“the Government have committed to look very carefully at judicial oversight of the temporary exclusion order power”,

and that the Government,

“will return to this issue in the House of Lords”.—[Official Report, Commons, 7/1/15; col. 340.]

Perhaps the Minister in his reply could give a specific commitment that the Government will bring forward amendments to provide for judicial oversight of the temporary exclusion order power.

We will want to discuss further the role of the Privacy and Civil Liberties Board, since the Bill itself reveals very little on this point. It contains more on the make-up and composition of the board than it does on its purpose and powers. Like the noble Lord, Lord Butler of Brockwell, I was interested in what the noble Lord, Lord Carlile of Berriew, had to say, because I thought he was indicating something about the intentions of the Government in respect of the board which I do not think I have heard from either the lips of the Minister or in writing from his pen. No doubt the Minister will want to clarify the intentions of the Government. The Bill says that the board will advise and assist the independent reviewer. Will the board be able to overrule or outvote the independent reviewer on any issues related to the carrying out of his role and responsibilities? Will the existence of the board create a bureaucracy which will divert the time and attention of the independent reviewer away from his existing crucial role, and will the board have its own separate support staff, and if so what will their role be? Will the independent reviewer still be able to seek advice—if he so wishes—from outside the board, and will he be required to seek the advice of the board on any specific issues, or will it be a matter for him to decide whether he wants their advice or not?

I appreciate that the Government have published a consultation paper, but presumably they did not provide for the setting up of the board in the Bill without having come to the conclusion that it was needed, and what its working relationship and role would be in respect of the independent reviewer. As my noble friend Lady Smith of Basildon said, our response to the threats we face can never just be a legislative one. Community action, pressure, and involvement is needed; and understanding and tackling the reasons why people—mainly young people—become radicalised and go down the road of violence and extremism is crucial. We hope that putting Prevent on a statutory footing will assist the situation in this regard, but we need to examine how the arrangements will work in practice, including, in the light of the resources previously cut, what will be made available. While we share the view that there is a need to take quick action to stop someone who it is believed is about to leave the country to become involved in terrorism-related activity, we believe that checks and balances are needed to minimise the possibility that the power to seize travel documents will be misused, or otherwise result in an injustice, a view that the government parties do not apparently share.

We very recently had the benefit of the views on the Bill of the Joint Committee on Human Rights, as well as those of the Constitution Committee. The Joint Committee on Human Rights has raised a number of points of concern, no doubt all of which will be considered and debated at Committee stage. Bearing in mind that there appears to be pretty widespread support in your Lordships’ House for the overall objectives and intentions of the Bill, the Committee and Report stages are likely to be the crucial ones. It is at those stages that the detail of how it is intended that the proposals will actually be implemented should be provided by the Government so that a considered view can be reached on the practicality and feasibility of what is being proposed, as well as on the adequacy or need for checks and balances to ensure that powers cannot be abused and that the possibility of injustice occurring can be minimised.

We have already indicated our support for the objectives and intentions of the Bill. It is the detail that needs careful and considered debate, but with a recognition that we need both liberty and security in a democracy if the goal of safety for our citizens is to continue to be delivered and sustained.

Child Sex Abuse Inquiry

Lord Rosser Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Bates]

My noble friend is absolutely right. I also pay tribute to her work as the Victims’ Commissioner, which she carries out assiduously. Of course more needs to be done to help the victims. We are consulting with the Department of Health to find out what additional help we can provide, and in the interim we will be announcing a further package of £2 million of support for victims’ groups in the ongoing discussions.

[Lord Rosser (Lab)]

We seem to be getting nowhere fast on this one, which is in marked contrast to the successful work done by my noble friend Lord Harris of Haringey on campaigning to close the loopholes on soliciting sexual material from a child—an issue which the Government have at last decided to take on board. Frankly, that they have still failed to find a chairman suggests that suitably qualified candidates are perhaps now being put off by the inevitable trawling through their personal lives, backgrounds and families by the media which the Government’s ineptitude has ensured will now occur. Can the Minister tell us why the Home Office failed to carry out basic background checks on Fiona Woolf, having had the first appointee stand down? Further, while I think the Minister has said that the survivors and victims of abuse are being consulted on the issue of the new chairman, can he say whether the terms of reference and the format of the inquiry are also being discussed with them?

[Lord Bates]

The noble Lord’s latter point is of course central to the discussion with the survivors. They want to have confidence that individuals can be compelled to give evidence and that that evidence will actually be available to them. Perhaps I may say that it is a bit unfortunate for the noble Lord to take that tone in relation to the appointments. Both the people who were appointed to the role of chair are eminently qualified to do the work, but the question mark was over whether they would command the confidence of the survivors’ groups. It became apparent that that was not the case, and that is the reason the Home Secretary is going to the lengths that she is to listen to them now.

Passports

Lord Rosser Excerpts

Thursday 11th December 2014 Lords Chamber

[Lord Bates]

Yes, for overseas passports it is Durham and Liverpool and we have put in an extra 1,100 staff to clear the backlog and improve our performance. Of those, so far 500 have been appointed and the rest will be appointed in the next few months.

[Lord Rosser (Lab)]

At the peak of the summer holiday season, the Passport Office had a backlog of more than half a million passport applications. Thousands of people who had booked and paid for holidays were left uncertain whether they would be able to travel. In an editorial on 10 July on the great passport backlog, the Times wrote:

“The Passport Office has failed. The minister responsible … has failed”.

The Times was right. What guarantees can the Government give that there will not be the same shambles in the first half of next year?

[Lord Bates]

There was a failure. That is why the Home Secretary intervened to annul agency status and to bring the problem into the Home Office to get a grip on it. That is why the delay in the process time for applications—which had sunk as low as 20%, which is appalling and for which we apologise—is now above 50% and heading towards 60% to 70%. That is as a result of the actions that have been taken and the grip that the Home Secretary has on the situation.

EU: Justice Opt-ins

Lord Rosser Excerpts

Wednesday 10th December 2014 Lords Chamber

[Lord Bates]

That is absolutely right. The noble Baroness has great expertise in the workings of Europe, and the report to which we are referring is just an academic report, not a Commission proposal.

[Lord Rosser (Lab)]

The Government are rejoining 35 EU justice and home affairs measures. My noble friend Lady Smith of Basildon asked questions of the Government—raised, I believe, on four previous occasions—about how many of the justice and home affairs measures that the Government have opted out of have any value, or even apply to the UK, how many were being used in an operation prior to the opt-out decision and how many were harmful to the interests of the UK. Again my noble friend’s questions were not answered, which rather supports the point made by the Chairman of the EU Committee in the same debate, about the need for the Home Office to take parliamentary scrutiny and accountability seriously. Will the Minister now answer those questions, or is there a grim determination to ensure that, for these particular questions on opt-outs, the Government Dispatch Box will remain an answer-free zone?

[Lord Bates]

It would help if the noble Lord had actually listened to the previous debates. On Monday we had the very same question: his noble friend Lady Smith asked me that question. I replied by referring her to Command Papers 8897 and 8671, which set out in exhaustive detail—enough even to satisfy the level of scrutiny on the opposition Benches—what our position is on every single one of those matters.

Modern Slavery Bill

Lord Rosser Excerpts

Wednesday 10th December 2014 Lords Chamber

Moved by

[Lord Rosser]

86P: After Clause 48, insert the following new Clause—
“Establishment and function of the National Referral Mechanism
(1) The Secretary of State must establish a National Referral Mechanism (“NRM”) to—
(a) identify trafficked, enslaved or exploited persons within the United Kingdom;(b) provide assistance and support to a person who may have been trafficked, enslaved or exploited from the time at which that person is first referred into the NRM until such time as a final and conclusive determination is made that they are not such a person; and (c) ensure that the rights of such persons are protected and promoted in a manner which discharges the Government’s obligations under the Trafficking Convention and the Trafficking Directive regarding the identification and protection of victims, including measures for assistance and support.(2) The Secretary of State must, in regulations, specify the procedures to be followed to implement the NRM and the procedures to be applied by the NRM including to give effect to the right to a renewable residence permit provided for under subsections (5) and (6).
(3) The regulations must provide for a right of appeal by an individual in respect of a decision in the NRM process that they are not a trafficked, enslaved or exploited person.
(4) An adult must give their free and informed consent to being referred into the NRM before a referral is made on their behalf.
(5) A person who is determined in the NRM process to be a trafficked, enslaved or exploited person shall be entitled to a one-year renewable residence permit permitting them to remain in the United Kingdom where one or other, or both, of the following situations apply—
(a) a competent authority in the NRM considers that their stay is necessary owing to their personal situation; or(b) a competent authority in the NRM considers that their stay is necessary for the purpose of the person’s co-operation with the authorities in connection with their investigations or criminal proceedings.(6) A residence permit for child victims shall be issued where it is in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.
(7) The protection, assistance and support provided to trafficked, enslaved or exploited children (including those to whom the presumption of age applies) in accordance with the provisions in this Act shall be at least equivalent to the protection, assistance and support provided to adults, save that where other legislation provides for greater protection for children that legislation shall, to the extent of any inconsistency with this Act, prevail.”

[Lord Rosser (Lab)]

My Lords, Amendment 86P is in substitution for Amendment 86N. The difference is in proposed new subsection (4). Amendment 86N refers to:

“A person (including a child)”.

Amendment 86P refers to “an adult”. This amendment was not meant to include a child. That is the difference between the two amendments.

The purpose of our amendment is to put the national referral mechanism on a statutory footing with its overriding role and objectives laid down in respect of persons trafficked, enslaved or exploited within the United Kingdom, including the right of appeal by an individual against a decision in the national referral mechanism process that they are not a trafficked, enslaved or exploited person. Despite the views to the contrary expressed by a majority of interested parties who participated in a recent Home Office internal review of the national referral mechanism, the Government have not been prepared to go down the road of placing the NRM on a statutory footing as it would, in their view, make it inflexible and unresponsive to changing demands.

No doubt that might be a problem if all the detail about the role and operation of the NRM were included in the Bill, but that is not what we are proposing. We are talking about the key principles and functions that the NRM should be seeking to address and deliver in respect of victim identification and support. The Joint Committee on the draft Bill recommended that the Bill should be amended to give statutory authority for the national referral mechanism in order to ensure greater consistency in its operations, decision-making and provision of victim support services. The committee went on to say that the statutory basis should also provide for a mechanism for potential victims to trigger an internal review and to appeal against decisions taken by competent authorities.

Among the arguments that, as I understand it, led the Joint Committee to make its recommendation were that the current arrangements led to arbitrariness of application and access for victims; that giving victims statutory rights would make claiming and enforcing those rights more straightforward; that a statutory footing gave greater transparency and accountability and would also raise awareness of the national referral mechanism among front-line agencies; and that having the NRM on a statutory basis would provide an opportunity to establish a clear review and appeals process compared to the present system of informal requests for decisions to be reconsidered. While judicial review offers a more formal route, it can be used only to challenge the way a conclusion has been reached rather than the merits of the conclusion, and judicial review is also likely to be expensive.

Since placing the NRM on a statutory footing should increase awareness and accountability within the system, it would also help to ensure that victim identification and assistance is prioritised across the board. The evidence suggests that the NRM is underused and is not as widely known about as one might expect. Many involved in dealing with victims of trafficking and modern-day slavery regard referral to the NRM as a non-mandatory process on which there is no training or scrutiny of decisions to not refer, even for children within the child protection system. Without a statutory underpinning of victims’ rights to identification and specialist support there is more than a possibility that practitioners will either continue to disregard the national referral mechanism entirely or see it solely as best practice as opposed to something to which victims have a right.

Referral into the national referral mechanism can be pretty significant for victims. Those who have a positive NRM decision may have a higher likelihood of a prosecution against them being dropped if they have been trafficked and forced to commit a crime, and, in turn, positive NRM decisions are used by police as corroborative evidence in prosecutions against traffickers. Specialist support and accommodation, and access to legal aid, are also often dependent on a positive decision within the NRM.

In the light of this and the significant known increase in the level and extent of trafficking and exploitation since the NRM was established, it is not clear why there is this apparent unwillingness on the Government’s part to place the NRM on a statutory footing and help to ensure that both the underlying principles of the system of victim identification and support, which are already set out in existing international legislation to which the UK is bound, are included in the Bill, and that there is greater accountability for those who fail to assist or refer potential victims of modern slavery for identification.

The preface to the recent review of the national referral mechanism stated:

“Since its introduction in 2009 the National Referral Mechanism has grown somewhat wildly over time”,

and that it is,

“now a complex system operating in a challenging and painful area of public life”,

and,

“a difficult system to grip”.

It stated:

“Many level criticism at the current system and we have found that it does need to change”.

The review drew attention to the fact that the number of potential victims who are referred to the NRM is low, given what we know about human trafficking. It also said that the current system is,

“fragmented and lacking an overall performance framework … and … cannot be described as efficient or effective”.

The review continued, saying that there was,

“insufficient accountability for the outcomes of the process or the appropriate management of the process itself”.

The review also heard the views of the voluntary organisations that work with victims of trafficking, which include calls for the,

“removal of responsibility for the National Referral Mechanism from the Home Office and the establishment of an independent body outside of UK Visas and Immigration and the Police … a desire to place the National Referral Mechanism on a statutory footing”,

and,

“a right of appeal to challenge those decisions which are believed to be wrongly made”.

It is difficult to see how the extensive concerns and recommendations set out at the beginning of the review could be addressed and delivered effectively without putting the NRM or a similar body on a statutory footing and moving away from what seems closer and more akin to an internal administrative process. It is also worth pointing out that while the review was asked to look at six key areas, including governance of the national referral mechanism, it was not specifically asked to examine the issue of placing the NRM on a statutory footing.

The reality is that at the present time some 80% of referrals—I am sure that I will be corrected if I am wrong—on behalf of EU citizens as victims of human trafficking, which are dealt with by the UK Human Trafficking Centre, which is part of the National Crime Agency, are accepted. It is also true, I believe, that some 80% of referrals on behalf of non-EU citizens as victims of human trafficking, which are dealt with by UK Visas and Immigration, which is part of the Home Office, are not accepted. At the very least, decisions on non-EU referrals as victims of human trafficking, which involve issues of UK residence, should be dealt with as a statutory decision by a statutory body.

Our amendment does not in any case go into great detail that might, in the Government’s eyes, leave the NRM inflexible and unresponsive to changing demands, since it primarily sets out the overriding role and objectives of the national referral mechanism, provides for the Secretary of State to seek to specify in regulations the procedures to be followed and applied, and provides for a right of appeal by an individual against a decision that they are not a trafficked, enslaved or exploited person.

Not being on a statutory footing does not seem to be providing an effective and efficient national referral mechanism, in the light of the situation today on the incidence and nature of human trafficking and exploitation in this country. I hope that the Government will be able to respond favourably to our amendment, which I beg to move.

--- Later in debate ---

[Lord Bates]

I accept that. I do not want to yield, as it were, to the position of saying that because we are being pressed by distinguished Members, we should give way on this. I have tried to put forward quite a robust argument as to why we have arrived where we have. We have before us a significant review of the national referral mechanism, which seems to address many of the concerns that people have recognised. That review, which everybody was in favour of and many people were involved in, came out against putting it on a statutory footing. We must take that into account but I give the assurance that, in the spirit that we have tried to keep all the way through this Bill, we will look at that very carefully and continue that discussion between now and Report.

[Lord Rosser]

I thank the Minister for his response and the indication that we can at least continue to discuss this issue, which is very helpful. As the noble Baroness, Lady Hamwee, said, the review argued for a well governed national referral mechanism, so in the light of all the criticisms that it made—no doubt quite rightly—of the present system, it is a question of whether one feels that can be achieved without it being on a statutory basis. I think a lot of people will feel, in the light of those criticisms, that we need to put it on a statutory basis. As the right reverend Prelate said, it would provide consistency and clarity for victims in how they were treated and give a clear framework. I think there is a lot to be said for doing that.

I acknowledge the point the Minister made: when the national referral mechanism was set up in 2009, it was not done on a statutory basis. Equally, the situation in relation to the incidence and nature of human trafficking and exploitation in this country has changed quite dramatically since 2009. Certainly, there has been a bit of an awakening as to what exactly has been going on. I can only repeat what the review said:

“The National Referral Mechanism has grown somewhat wildly over time. It is now a complex system operating in a challenging and painful area of public life”.

That would seem to reflect a view on its part that perhaps the situation has changed since 2009.

There are three amendments in this group, one of which the noble and learned Baroness, Lady Butler-Sloss, spoke to. That one does not suggest instant action since it refers to the Secretary of State reporting to Parliament within 12 months. I rather sense from some of the comments the Minister made that the biggest drawback to putting this on a statutory basis at the moment appears to be that the Government feel the situation is somewhat fluid with changes to the national referral mechanism, and they therefore feel that this might not be the appropriate time to put it on a statutory footing. I am not entirely clear—and I am not asking the Minister to respond at the moment—whether the Government object in principle to it being on a statutory footing. That is not the way it came over. I felt that the Minister was saying that the situation is fluid in relation to the NRM and this is not the appropriate time to do it. I hope I have not misunderstood him but I welcome his proposal that there should be further discussions about this, which is extremely helpful. In the light of that, I beg leave to withdraw my amendment.

Amendment 86P withdrawn.

--- Later in debate ---

[Lord Hylton]

My Lords, I happen to have been involved with this situation, which allows serious abuses of incoming domestic workers to happen, since the early 1990s. I have never known such universal support for the need for a reform as we have heard today. I leave it at that.

[Lord Rosser]

My Lords, the name of my noble friend Lady Royall of Blaisdon is attached to this amendment. I certainly do not wish to speak at any length, because the arguments have already been made, but I shall reiterate one or two things. Under the tied visa system, introduced in the changes in 2012 to the Immigration Rules, overseas domestic workers who are being exploited no longer have the option of seeking other employment to get away from an employer who is exploiting them since they are tied to their employer for a non-renewable period of six months. Under the tied visa system, people who are being exploited are normally not willing to go to the relevant authorities because they fear that, if they leave their employer, the outcome will be that they will be deported as an immigration offender. If they are being paid anything at all—evidence suggests that more than 60% may not be—they will lose what may be a source of income being sent to support dependants in their own country.

One would have thought that the Government would have wanted to abolish the current tied visa system for overseas domestic workers, since tying migrant domestic workers to their employer institutionalises their abuse, as has been said already, and precludes acting decisively to protect victims of modern slavery. Of course, as also has already been said, it is unrealistic for such domestic workers to take any kind of legal action against an employer who potentially has trafficked them, exploited them and denied them their most basic rights while still living in the home of their employer.

The impact assessment that accompanied the 2012 changes stated that the ability of these workers—that is, overseas domestic workers—to change employer and access the UK labour market was,

“contrary to general Government policy on low skilled migration”.

However, the impact assessment also acknowledged the,

“vulnerability to abuse and exploitation”,

of these workers. I do not know whether the Government’s resistance to date to going down the road of this amendment is related, in the light of that comment in the 2012 impact assessment, to a view that it would lead to an increase in immigration. Perhaps the noble Baroness could say what, if any, increase in immigration the Government believe there would be if the amendment that we are debating is adopted. Reversing the 2012 changes for the overseas domestic worker visa would, at the very least, allow organisations and agencies to remove a worker from an abusive employment situation immediately. It also would enable the abuse to be reported to the police without fear that the victim would be deported as a result and that, in turn, would facilitate the prosecution of modern slavery offences, which, surely, is the purpose of the Bill we are now discussing. I hope that, in responding, the Minister will take account of what has been said far more eloquently than I can manage by so many of your Lordships in this Committee today.

[Baroness Garden of Frognal (LD)]

My Lords, I thank the noble Baroness, Lady Cox, for introducing this amendment and speaking with such eloquence and acknowledge her expertise and campaigning work in this area. Holding anyone in modern slavery is totally unacceptable; I am sure that, around the Committee, we can all agree on that. Overseas domestic workers, like anyone else, deserve protection from modern slavery and support and help if abuse takes place. Noble Lords around the Committee have raised passionate concerns about some of the appalling situations that people find themselves in.

I shall set out why the main issue is not the nature of the visa that somebody has. Through both the Bill and wider policy changes, we will seek to provide protection to anyone who needs it, regardless of their employment type or any visa they may have. Obviously, we are focusing here on overseas domestic workers and seeking to strengthen their protections further.

The best way to prevent an abusive working relationship from being brought to the UK is to test its genuineness before a visa is issued. A number of noble Lords have raised these issues. Private household employers must prove to immigration officials that they have a pre-existing employment relationship of at least 12 months with their domestic worker, for example by providing pay slips or work records. All individuals applying to come to the UK on an overseas domestic worker visa must also provide evidence with their application that they have agreed in writing the core terms and conditions of their employment in the UK. That helps to establish that the worker is employed under terms that they find acceptable and allows us to ensure that these are appropriate. The evidence is to be provided in the form of a prescribed template—although, of course, I hear from around the Committee the concerns that these documents will not be adequately and legally kept to. The requirement for a written statement of key terms and conditions has been in place only since April 2012 and we believe that it could be improved to reflect international best practice. Officials have been working on a revised template to try to ensure that both employers and employees have an opportunity to see what standards are expected on both sides before workers come here and that they are aware of rights and responsibilities, including, sections on passport retention, sleeping accommodation and all the other things that noble Lords have mentioned, which so often are open to abuse.

--- Later in debate ---

Moved by

[Lord Rosser]

97AA: Clause 51, page 37, line 27, at end insert—
“( ) A slavery and human trafficking statement by a commercial organisation must contain specific information in relation to the steps they have taken in the following areas—
(a) accountability for tackling modern slavery and forced labour, including policy commitments, resourcing and actions to exercise due diligence,(b) investigation, monitoring and auditing of modern slavery and forced labour risks in the UK and throughout their global supply chains,(c) support and access to remedy for victims of forced labour and modern slavery, and(d) training of staff and suppliers, and access to expertise and advice.”

[Lord Rosser]

My Lords, the movement the Government have made on this issue during the last stages of the Bill’s progress through the other place is welcome. We cannot accept products made using slave labour being sold here if we are determined to tackle modern slavery in this country. Over four out of five members of the public in this country want legislation on this issue, as do the overwhelming majority of companies themselves. The public will want to be satisfied that progress is being made to eliminate modern slavery in businesses and in supply chains, since awareness has arisen in the light of some high-profile cases that slavery or forced labour can be and is associated with the production of goods for major UK companies.

The public will want to be satisfied that the provisions of this Bill will lead to the end of products made using slave labour being sold on our streets. Although most commercial organisations are tackling this issue, it can be hard to see and measure tangible progress. There needs to be a way for consumers in particular to be able to judge the relative performance in this area of companies whose products or services they may wish to purchase. To achieve this, there is a need to introduce mandatory reporting requirements to ensure that companies adopt similar processes and approaches in reporting, which is what this amendment seeks to do. This will also help create the level playing field that responsible companies want to see and is the reason why so many companies are seeking effective legislation on this matter.

The Bill refers to a commercial organisation being required to prepare a slavery and human trafficking statement, which is defined as,

“a statement of the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place … in any of its supply chains, and … in any part of its own business, or … a statement that the organisation has taken no such steps”.

The relevant clause, Clause 51, goes on to say that the Secretary of State,

“may issue guidance about the duties imposed on commercial organisations by this section”,

and that the guidance,

“may … include guidance about the kind of information which may be included in a slavery and human trafficking statement”.

Indeed, the Home Secretary’s title appears all over Clause 51.

While that clause goes on to say that,

“The duties imposed on commercial organisations by this section are enforceable by the Secretary of State bringing civil proceedings”,

it appears that the duty in the Bill in respect of preparing a slavery and human trafficking statement extends no further than producing a statement of the steps that the organisation has, or has not, taken. There is no duty imposed on what kind of information should be provided to substantiate or provide some specifics on the steps taken, since that requirement will be in the form of guidance which “may” be issued by the Secretary of State and which “may” be included in a slavery and human trafficking statement.

Thus, guidance, in effect, may not be issued at all. If it is—and the guidance may be specific or generalised—it is optional whether the kind of information that it suggests should be included in a slavery and human trafficking statement is actually included. Frankly, that is all pretty vague and woolly. It certainly does not ensure that companies provide sufficient information to be able to judge whether they are effectively addressing the issue of modern slavery in their own organisations and in supply chains and taking effective steps to ensure that, if modern slavery or exploitation exists, it is being eliminated.

If the Government believe that the prospects of civil proceedings will be rather more potent than I have suggested, perhaps the Minister could spell out the situations in which they could be initiated under the terms of the Bill, beyond a commercial organisation failing to produce a statement of the steps that it has, or has not, taken during the financial year to ensure that slavery and human trafficking is not taking place. Are the Government saying that, under the terms of Clause 51(9), civil proceedings can be brought on other grounds and, if so, in respect of which other duties imposed on commercial organisations by the clause?

Our amendment seeks to set out the specific information that must be provided in a slavery and human trafficking statement by a commercial organisation in relation to the steps that they have taken to ensure that modern slavery is not taking place. The requirement is information that must be provided, so if it is not provided that could be the subject of the civil proceedings. If the information is provided but suggests that very little is being done, that fact will be exposed in a way that would not happen under Clause 51 as it stands.

Our amendment would also better enable meaningful comparisons of the performance of different commercial organisations, in addressing and eradicating modern slavery in their own organisations and supply chains, to be made by consumers and other interested parties, including shareholders, relevant voluntary organisations and the media, in a way that Clause 51 does not provide. It would also better enable interested parties to examine whether what is said in slavery and human trafficking statements in fact represents an accurate assessment of the situation, or whether they are statements whose relationship to the facts is not immediately obvious.

The ability for interested parties to compare the performance in this field of different companies, and the knowledge that the content of statements which have to address specific points could be checked for their fairness and accuracy, will act as an incentive for commercial organisations to address properly the issue of modern slavery in their businesses and supply chains, because of the reputational damage likely to be caused if it is shown that their performance on this issue is poor, or that the slavery and human trafficking statements they produce—which, under our amendment, would have to contain the specific information laid down—are not as accurate as they might have been. That situation, and the pressure that it will place on commercial organisations to act, will not be there under the requirements of Clause 51. I simply ask the Government: how do they believe that the wording in Clause 51 provides a means of checking effectively on what some commercial organisations are doing in comparison with others, and of being able to check on the accuracy of the content of a slavery and human trafficking statement?

While Clause 51 is most welcome as movement on this issue by the Government, with its vagueness, its repeated use of “may” and its guidance rather than requirements, the clause is based too much on the “It’ll be alright on the night” approach. That is, frankly, not adequate on a matter as serious as this, involving the exploitation of and contempt for other human beings. This is something impacting on our own doorsteps, since it involves the goods and services that we buy. We need to get Clause 51 right first time. We need to place prominent emphasis on the position of those who are being exploited and to ensure that the terms and requirements in the Bill are strong enough to address and eliminate, over not too long a time, the evil that is modern slavery where it exists in businesses and in their supply chains. I beg to move.

[Baroness Goudie (Lab)]

My Lords, I support my noble friend Lord Rosser on this amendment. I feel extremely strongly about this as, throughout this evening, we have heard about not having enough money but we have to remember that we are talking about people. They are not robots or goods; they are human beings. It is really important to remember that when we talked earlier about the cost of implementing this, we are talking about saving people’s lives and ensuring that they have a life as good as we have, or even better.

The way I see this operating is that accountability in companies should be handled by their procurement department. Every large and small company has a procurement department or somebody who goes to the middle companies that they order from. We should not say that the middle people should be responsible. The companies should be able to tell us and, if necessary, go and inspect where and how the goods are made, and how the people are paid. They spend enough time on decorating, branding and PR, but instead of spending so much time and money on those things, they should spend it in their new procurement department. Some of them have these procurement departments; I see them as being as important as health and safety has become, thanks to the way that Governments have pushed that forward.

It is so that the companies can say, when the audit is done every year and in their annual report, that they have visited the factories and the building sites. It may be something that the construction industry here is responsible for in Bahrain, Beijing or Qatar. This should apply not just to companies but to government departments, when we are assisting as museums or parts of new universities are built abroad. What we are trying to say is that every company and organisation involved in labour or goods, abroad or here, should be audited and that the procurement department should be responsible. “May” is not strong enough; we have to say that this is to be done annually in the audit and that it can be inspected and questioned.

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[Lord Bates]

Those are very good points well made. My home town, Gateshead, is the proud home to Traidcraft, which does tremendous work in this area doing ethically sourced coffees and foods, which are often a particular problem, but I do not want to get into advertising around Christmastime otherwise I will get into a whole other set of problems. Ultimately the consumer has great power here, although perhaps they do not realise it. In the same way that they have the power to drive down prices and standards around the world, they also have the opportunity to drive them up through their purchasing patterns.

The interdepartmental ministerial group is one part of this but I want to talk about another important part: what the Government can do. The Government can do more by putting their own house in order. The Government are a huge procurer—I do not know whether that is the right term—and a major purchaser of goods and services. It is important that we do everything that we can to prevent modern slavery from infiltrating our public sector supply chains. Taxpayers’ money should not be allowed to drive demand for these heinous crimes. That is why we are already taking concerted action on this issue. Individual departments have already taken clear steps. For example, the NHS standard terms and conditions for suppliers have clear conditions on labour standards in the NHS supply chain, and it has developed a labour standards assurance system that encompasses issues on forced labour.

The interdepartmental ministerial group on modern slavery will help to encourage best practice across the Government and the devolved Administrations. Home Office standard terms and conditions already require compliance with the law, which will of course soon include ensuring that suppliers have complied with our transparency and supply chain measure. We are also strengthening the labour standards section within our annual corporate social responsibility assessment in order to seek specific assurances from the Home Office’s largest suppliers that they have policies in place to address the risk of modern slavery. In addition, we are currently seeking ways to go further and require specific assurances from suppliers about steps that they are taking to stamp out modern slavery, which is an approach that we hope to then roll out across central Government. As a result, we are already proactively going beyond the measures in the Bill to address this issue. This is a bit like what we are asking people to do: to make a public statement and then be held to account for it. I wanted to put that on the record and expect to be held to account for it, being careful not to tempt fate too much. It is right that that is where we start.

With that rather longer than expected introduction, aware that we have two further groups to come in this area of consideration and having put those points on the record, perhaps the noble Lord, Lord Rosser, would accept that as a response on the Government’s position on his amendment and consider withdrawing it at this stage.

[Lord Rosser]

Before I do that, did the Minister early in his reply refer to coming back at a later stage or not?

[Lord Bates]

Coming back at a later stage to spell this out in greater detail?

[Lord Rosser]

Yes.

[Lord Bates]

I do not think I actually said that. I think I related it to the consultation. The Government’s position is: let us have a consultation, let us try to bring industry with us. The consultation will start in January, it will finish at the end of March and it will then be evaluated, so we will probably be beyond Royal Assent before that is available. That was in my statement. I may have alluded to the fact—this may have given rise to the confusion—that we will be coming back to this issue in subsequent groups in Committee today, but the consultation will extend beyond Royal Assent.

[Lord Rosser]

I thank the Minister for clarifying that point and for his reply. I suppose one’s observation would naturally be that if the Government had put this in the Bill in the first place or had agreed somewhat earlier to Clause 51, the consultations could have been completed before the Bill had gone through all its stages in Parliament, and we might have been able to have a rather more meaningful debate. That is what happens when a Government had to be dragged kicking and screaming to put something in a Bill as it went through its last stages in the House of Commons.

I am still not clear what the Minister is saying about what action can be taken if a commercial organisation produces the slavery and human trafficking statement but it is a bit thin or vague in its content. The Minister said that the measures under Clause 51(9), civil proceedings, would relate to whether the organisation had actually prepared the statement—which has nothing to do with the content—and published it on its website. It did not address the issue which I raised as to what would happen if the statement was a bit vague in its content. After all, the purpose of my amendment was to stipulate the areas that had to be addressed in the statement. The Minister has not really responded to that point.

Surely, enough information needs to be required in the statement to enable a consumer, a voluntary organisation or the media to form a view on how well or otherwise a company is doing compared to other companies in ensuring that slavery and human trafficking is not taking place in any of its supply chains or any part of its own business. Frankly, the Minister has not said anything to provide me with any comfort that the Government intend to include anything in the Bill that will ensure that the necessary information is provided to enable those meaningful comparisons to be made. In moving the amendment, I referred to the issue of guidance. The Secretary of State “may issue guidance”—it is not “must issue guidance”—which,

“may in particular include guidance about the kind of information which may be included in a slavery and human trafficking statement”.

We still have the problem: what action can actually be taken if the statement is produced and published but is a bit vague in its content and does not really enable the consumer, the voluntary organisation or the media to make a proper and effective assessment of the action that has been taken by that company, compared with other companies, to ensure that slavery and human trafficking is not taking place?

[Lord Bates]

I did not mean not to give the courtesy of addressing the specific amendment. We believe that it would be for civil society and the wider community to examine and assess whether a company’s statement on its supply chain is sufficient, rather than it being for the Government to do that. While trying to be courteous and respond precisely to the point that the noble Lord, Lord Rosser, made, the noble Lord, Lord Alton, asked a specific question about whether the anti-slavery commission might collect data on that. As worded within the anti-slavery commissioner’s remit, he can undertake research, consult, produce documents and engage in education and information. Of course, he is independent. I should have thought that a key part of that might be to consider transparency of supply chains.

[Lord Rosser]

I can only comment that it is very difficult for civil society to make a judgment if there is not enough information in the statements in the first place. There is no requirement, in my opinion—and there is nothing in what the Minister said to cause me to change my view—in Clause 51 to ensure that the necessary information is provided.

Still, I note what the Minister said in reply. I am obviously disappointed with it, as Clause 51 still does not go far enough and will not enable those judgments to be made by society, whether it be consumers, voluntary organisations, the media or others. That is a matter of regret. However, I note that that is the Government’s position and I beg leave to withdraw the amendment.

Amendment 97AA withdrawn.

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Finally, I pay tribute to my noble friend Lord Bates for all his efforts in steering this important Bill through the House, and ask him to bear in mind that Clause 51 has been added because there is a genuine effort on the part of the Government to progress this matter. I hope that he will be able to respond positively to the amendment, which I believe would make what is already a good Bill even better.

[Lord Rosser]

My Lords, I will be brief. These two amendments are wider-ranging than my amendment but their intentions and objectives are similar, and I wait to see whether they will elicit a more enthusiastic government response. I also await the response to what I believe to be the request of the noble and right reverend Lord, Lord Harries of Pentregarth, for discussions involving the Government on this matter before the next stage in the passage of the Bill through this House.

[Lord Bates]

I cannot quite match the noble Lord’s brevity, but I will try to go as far as I can, because some interesting proposals have been made. The first was the idea, suggested by the noble Lord, Lord Alton, of reconvening, between now and Report, his group, including the noble Baroness, Lady Royall, on the issues of the supply chain. That would be a very helpful thing to do, and I would be happy to take part in it. The noble Lord talked about the process—the journey that we are on—starting when the new clause was tabled. Some may use the term “kicking and screaming”, but I think that a sinner who repenteth ought to be welcomed into the kingdom of heaven—and into Parliament. I believe we are making progress down that route.

Many points were made about the regulatory framework, to which the noble Lord referred in great detail. The regulatory framework is setting out the long-term strategy. That is where we want to be. There are some stages to go through, in relation to the point made by the noble and right reverend Lord, Lord Harries of Pentregarth. He raised the desire to see more bite than there is at the moment. I cannot give any assurances that that will be there by the time the Bill reaches Royal Assent. However, by the time of the process of consultation is complete and the guidance has been issued—

Modern Slavery Bill

Lord Rosser Excerpts

Monday 8th December 2014 Lords Chamber

A person would need to understand the cultural, supernatural and psychological impact a trafficker can have on a child as well as the fear they feel. This is a test too high for children. The addition of the reasonable person test effectively rolls back the progress that has been made as regards non-punishment of victims of trafficking. As regards children, our role should be to help and protect these vulnerable children, not make their ordeal worse. I hope that the Minister will support Amendments 80A and 82A.

[Lord Rosser (Lab)]

Our amendment proposes a new clause to the Bill providing for the Director of Public Prosecutions to issue guidance on the charging of known or suspected victims of human trafficking, and for a prosecution of a trafficked, enslaved or exploited person to be reviewed by the Director of Public Prosecutions before going to trial.

The first part relating to guidance reflects a feeling from a number of groups and organisations involved in these cases that it is far from clear how the Crown Prosecution Service deals with the public interest test when looking at victims of trafficking. We need to reduce uncertainty about when victims will be prosecuted. A model for the clarity of guidance called for in our amendment is the DPP’s guidance in relation to a totally different issue—assisted suicide.

On authorisation for a trafficking prosecution, which is also addressed in our amendment, we want to establish the principle that prosecutions of trafficking victims should happen only in exceptional circumstances, which is why we wish prosecutions of those who have had a national referral mechanism decision or are awaiting one to be authorised at the most senior level, namely the Director of Public Prosecutions.

Trafficked victims can be badly damaged and vulnerable and can wait 12 months in remand before a trial goes ahead, which only adds to their problems considerably. Evidence from the Helen Bamber Foundation to the Joint Committee on the Bill referred to the need for women to feel supported—to feel that they would be believed and that they would not normally be prosecuted. Allowing prosecutions to go ahead goes along with what traffickers would have told their victims: that they would do better to stay with them than go to the authorities and be prosecuted and deported.

Similar evidence from the Poppy Project discussed the 55 women that it has helped in the past year who were identified as trafficking victims only once they were in prison, usually on remand. Another example from the Poppy Project involved an adult woman who had been underground for 11 years in a brothel. She escaped and used a passport that her trafficker gave her and that she thought was legal. It was not and she ended up being imprisoned for immigration offences, even though she was not the one who had committed the crime. No one, it seems, investigated the trafficker who had given her the passport and who was able to carry on recruiting and procuring more victims. While the crime the woman committed was not committed during enslavement, it undoubtedly arose from her trafficking.

One consequence of the examples to which I have referred is that it seems almost certain that more trafficking victims have been prosecuted in this country than traffickers. There is a need for all those coming into contact with people who have been or may have been trafficked to be able to recognise the offence and that we do not find such cases ending up in court unless authorised at the top level as being appropriate to prosecute. I hope that will also be the Government’s objective and that the terms of our amendment will be accepted.

Finally, I would like to raise one point on the issue that my noble friend Lady Kennedy of Cradley has so effectively raised in relation to the reasonable person test. My point is simply a query, since I shall await with interest the Government’s response to her amendments. On the reasonable person test in Clause 45(1)(c), I ask the Minister whether the reference to the reasonable person “in the same situation” as the slavery or trafficking victim means that the assessment of whether a reasonable person would have had no realistic alternative to doing the act which constitutes the offence will be based on a view of what a reasonable person who had had experience of suffering the same kind of traumatic experiences and effects as the victim would have done. If so, how many people, in the Government’s view, would be able to make that assessment?

[Baroness Hamwee]

My Lords, like the noble Baroness, Lady Kennedy, I welcome the principal provisions, but I share her concerns. I thought that she was entirely clear in speaking to the amendments. Trafficking and slavery are trafficking and slavery. Not to be prosecuted for offences committed when one is trafficked or enslaved is a matter of human rights. Those rights should not be dependent on the individual’s characteristics; they are completely separate issues. I do not need to repeat everything that the noble Baroness said, but I will quickly refer—the title is probably longer than the reference—to Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, by the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings. She said:

“The penalization of a person for acts that they have committed as a cause or direct consequence of being trafficked must be seen in that context:”—

the context of human rights—

“not only does it unjustly punish and stigmatise victims of serious crime; it would also violate these human rights objectives”.

I come back to that. It is not a small point, but it is very specific and clear, and I fear that we will be muddying the waters if the wording remains as it is.

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We all want this defence to apply when vulnerable, abused and exploited individuals are forced into criminality, while at the same time ensuring that criminals acting of their own volition cannot use a protection intended for the most vulnerable to get away with their crimes. That is why we tabled the government amendments, which, importantly, remove the test that requires children to be compelled to commit an offence. I believe we now have the right balance between providing additional protection for victims and avoiding creating a loophole in the law that would allow wrongdoers to go free. With those assurances and the commitment that we will discuss this again before Report, I hope that noble Lords will feel able not to press their amendments and to support the amendments in the name of my noble friend Lord Bates.

[Lord Rosser]

Before the noble Baroness sits down, I referred in my contribution to the evidence from the Poppy Project of the 55 women who have been helped in the past year. They were identified as trafficking victims only once they were in prison, usually on remand.

Am I to take from the Government’s response to Amendment 84 that they are now satisfied that with the Bill they have put measures in train to prevent that kind of situation arising? The purpose of our amendment was to say that the prosecution had to be reviewed at the top level, by the Director of Public Prosecutions, before going to trial. Referring to the DPP issuing the guidance was an attempt to stop that kind of situation arising. If the Government are saying that they are satisfied that what they are doing will also address the situation to which I referred, I would be grateful to have it confirmed and on the record.

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[Baroness Butler-Sloss]

My Lords, it is entirely understandable that Schedule 3 should be part of the Bill. It is important that the serious offences should not be included in a defence. However, listening to what the noble Baronesses, Lady Kennedy and Lady Hamwee, said, and looking through Schedule 3, it seems to me that a great deal of it is utterly unnecessary. I remember discussing this with the former Attorney-General, Dominic Grieve, at a time when he was eventually agreeing that there should be a defence at all. He said that Schedule 3 would apply and I cheerfully said, “Yes, of course it will apply”, but I did not read all the way through. It was not until this version of the Bill came, with all these exceptions to the defence, that one sees that this really goes beyond what is necessary, as the noble Baroness, Lady Kennedy, has put out extremely effectively. As the noble Baroness, Lady Hamwee, says, that may be a problem.

I would have thought that this was absolutely a situation in which the Government, with the assistance of the Director of Public Prosecutions, could sort the wheat from the chaff. A great deal of these offences are not applicable or appropriate for victims of slavery, although they are entirely appropriate in other areas of criminal law where you should not have a defence on these issues. The Government should look at this and consider whether they want the whole of Schedule 3.

[Lord Rosser]

My Lords, I, too, would like to raise one or two questions about Schedule 3, since my noble friend Lady Kennedy of Cradley has given us the opportunity to consider it.

As I understand it, under Clause 45, a victim is not guilty of an offence only if they have done the act which constitutes the offence because they have been compelled to do that act, the compulsion is attributable to slavery or the relevant exploitation and a reasonable person in the same situation as the person, and having the person’s relevant characteristics, would have no realistic alternative to doing that act. If the victim has managed to meet these requirements, Clause 45(1) still does not apply if the offence committed is listed in Schedule 3, which, as has already been pointed out in another way, extends to six and a half pages of offences. Some are easily understandable for being on that list, such as murder, manslaughter and kidnapping, but others are not so obvious bearing in mind the requirements under Clause 45 that the victim will already have had to meet in order to use Clause 45 as a defence.

In view of that, how does the Minister justify the need for such an extensive list of offences for which a victim can be found guilty even though they have met the three requirements to which I have already referred under Clause 45(1)? How and against what criteria was this list of offences compiled? To look at one example, included in the list is an offence under Section 25 of the Immigration Act 1971 of assisting unlawful immigration to a member state, which is an offence one might normally associate with a trafficker rather than the victim. Is there evidence that victims of trafficking are committing this offence of assisting unlawful immigration to a member state unrelated to their being trafficked themselves? If there is, is it also appropriate that they could be found guilty of such an offence, despite meeting the requirements in respect of compulsion and the reasonable person test under Clause 45(1) to show that they cannot be guilty of an offence unless it is listed in Schedule 3?

[Lord Alton of Liverpool]

My Lords, like the noble Lord, Lord Rosser, I am puzzled by this. In Part 5, Clause 45(1) seems clearly to set out, in paragraphs (a), (b) and (c), under what terms prosecution would ensue or not ensue. As the noble Baroness, Lady Kennedy of Cradley, has rightly told us, the danger with lists is that there may well be things that have not been included on the list that might in due course pertain. I simply ask what may be an entirely innocent and naive question: why is it not possible to put in the Bill a generic term rather than having to have all these details in the legislation?

[Baroness Garden of Frognal]

My Lords, I thank the noble Baroness, Lady Kennedy, for tabling Amendment 83A and for asking whether Schedule 3 should stand part of the Bill, which relate to the offences excluded from the statutory defence for victims. I also thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord Alton and Lord Rosser, for their contributions.

As we have previously discussed, Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. As we discussed in the previous group, this builds on the existing use of prosecutorial discretion by the CPS backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process.

Noble Lords questioned how Schedule 3 was drawn up. It was drafted very carefully in consultation with the DPP and CPS. As the noble Lord, Lord Rosser, mentioned in his previous intervention, it is very important that we get involvement from the DPP and CPS in drafting these pieces of legislation. As I have said, it was with approval and consultation that this list was drawn up. There is a need for appropriate safeguards to ensure that a new defence is applied effectively and is not open to abuse, for example by organised criminals, even if they once have been trafficked themselves. There is a delicate balance to be struck and we want to get that balance right.

Amendment 83A, together with the suggestion that Schedule 3 should not stand part of the Bill, would mean that the defence could apply to any offence, including serious sexual and violent offences such as murder and rape. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances and it will not always be the case that a defence is justified. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but also society. As we developed the statutory defence, our approach was always to ensure that we covered the types of offences often committed by those who are enslaved or trafficked. We have taken detailed advice from the Crown Prosecution Service on this point. As I have mentioned, the offences listed in Schedule 3 reflect those discussions and discussions with the DPP.

The defence is therefore designed to provide an effective protection against prosecution in the types of circumstances that actual victims of modern slavery find themselves in—for example, cannabis cultivation. The list of excluded offences in Schedule 3 can be amended by statutory instrument if experience shows the offences listed are not right and fail to protect vulnerable victims. But, in order to avoid creating a dangerous loophole for serious criminals to escape justice, we think it is right that the defence is not available in the cases—mainly serious sexual and violent offences—as listed in Schedule 3. This does not mean that a victim who commits a Schedule 3 offence in a modern slavery context will automatically face prosecution. Where the defence does not apply because the offence is too serious, the Crown Prosecution Service will still be able to decide not to prosecute if it would not be in the public interest to do so. It is right that in very difficult cases involving very serious crimes, including rape and murder, the Crown Prosecution Service carefully considers both the victim of trafficking and the victim of a very serious crime, and seeks to act in the public interest.

I understand the concern of noble Lords that victims should not be inappropriately criminalised; we agree on that, but that is why we are strengthening protections for victims in the Bill. We must be careful, however, that we do not create a loophole for very serious criminals. In the most serious cases, it is right for the CPS to use its discretion—and I emphasise that there is always discretion in these cases—to act in the public interest, based on the specific facts of the case. We are, of course, open to further discussion before Report, but I hope that these assurances will enable the noble Baroness to withdraw her amendment.

[Lord Rosser]

My Lords, I ask the following question seriously and not frivolously: if this has been the subject of discussion with the DPP, is it therefore the case that there are already examples of victims of trafficking having committed all those offences listed in Schedule 3?

[Baroness Garden of Frognal]

No, I do not think for a moment that there are examples of victims having committed all those offences in Schedule 3. This is simply set out for public protection, in order to ensure that serious crimes are not automatically given a free ride as a result of the criminals being victims.