West Midlands Combined Authority (Transfer of Police and Crime Commissioner Functions) Order 2024

Lord Sharpe of Epsom Excerpts

Wednesday 13th March 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Order laid before the House on 7 February be approved.

Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 15th Report, 17th Report from the Secondary Legislation Scrutiny Committee.

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

My Lords, if approved by both Houses, this order will transfer police and crime commissioner—PCC—functions from the West Midlands PCC to the Mayor of the West Midlands. The first mayor to exercise PCC functions in the West Midlands would do so following the next mayoral election, which is scheduled for Thursday 2 May 2024. This maintains the direct democratic accountability for policing and crime in the West Midlands, as the mayor will be elected by the people of the West Midlands on the basis that they are to exercise the functions of the PCC for that area.

The incumbent PCC for the West Midlands will continue to exercise the functions until the end of his elected term of office. The person elected as mayor, from the point of taking office on Tuesday 7 May following the mayoral election, will act as the single, directly elected individual responsible for holding the chief constable and police force to account. The mayor will be accountable to the people of the West Midlands for this responsibility. Their functions would include issuing a police and crime plan; setting the police budget, including the PCC council tax precept requirements; appointing and, if necessary, suspending or dismissing the chief constable; addressing complaints about policing services; providing and commissioning services for victims and vulnerable people; and working in partnership to ensure that the local criminal justice system is efficient and effective.

Part 1 of the Government’s review into the role of PCCs cemented government’s view that bringing public safety functions together under the leadership of a combined authority mayor has the potential to offer wider levers and a more joined-up approach to preventing crime. The Government’s levelling up White Paper, published on 2 February 2022, sets out our aspiration to have combined authority mayors take on the PCC role where feasible. By working in partnership across a range of agencies at local and national level, mayors can ensure that there is a more holistic, unified approach to public safety.

As is required by Section 113 of the Local Democracy, Economic Development and Construction Act 2009, the Home Secretary launched a public consultation on the proposed West Midlands police and crime commissioner functions transfer on 20 December 2023, which ran for six weeks to 31 January. Over 7,000 responses were received to this consultation, and the Home Secretary considered the views gathered when deciding whether to lay this order enabling the transfer of PCC functions to the Mayor of the West Midlands.

It is the Government’s view that incorporating PCC functions into the role of the Mayor of the West Midlands, who is elected to deliver across a range of other functions, will bolster their mandate to bring greater joined-up access across the responsibilities they are accountable for and will help to facilitate a whole-system approach to crime reduction.

[Lord Grocott (Lab)]

While the Minister is on the consultation, could he conclude it by telling us the number of consultees and the responses that they gave, and can he give us some numerical attachment to that so that we get some idea of how the consultation went?

[Lord Sharpe of Epsom (Con)]

I can and will do so shortly.

Incorporating the PCC functions into the role of the Mayor of the West Midlands preserves the democratic accountability that underpins the PCC model and at the same time reduces the risk of competing democratic mandates within the West Midlands Combined Authority area, providing greater clarity for the electorate on who is responsible for public service functions in their area.

The exercise of PCC functions by the Mayor of the West Midlands is a significant step to realising our ambition for more combined authority mayors to take on PCC functions, as is already the case in Greater Manchester and West Yorkshire. It will mean that people in the West Midlands will be served by a mayor who will have a range of functions and levers comparable to those of the mayors of Greater Manchester, West Yorkshire and London, and they will be able to hold their mayor to account for this enhanced range of responsibilities.

The Government have also laid a similar order which, if approved by both Houses, would see PCC functions exercised by the Mayor of South Yorkshire, following the rescheduled mayoral election in May.

I turn briefly to the amendment tabled by the noble Lord, Lord Bach. The noble Lord states that the transfer of functions is taking place without the consent of the other relevant local authorities. When PCC functions are transferred to be exercised by an existing combined authority mayor, Section 107F of the Local Democracy, Economic Development and Construction Act 2009 requires the consent of that mayor to enable the making of the order. The Mayor of the West Midlands provided his formal consent to the Home Secretary on 7 February. The consent of any other local leader is not required by statute. This reflects the fact that it is the mayor themselves and not the combined authority or the leaders of the constituent authorities who will exercise the PCC functions, as it is a central tenet of the PCC model that only the individual elected to exercise the PCC functions may do so, whether that individual is a PCC or a mayor.

The noble Lord also states that the functions are being transferred without the consent of the people of the West Midlands through a vote, but the incumbent Mayor of the West Midlands was elected to office by the people of the West Midlands in May 2021. Arguably, this means that the mayor has a clear democratic mandate in the region, and, as indicated, he has consented to this order. Should the House pass this order, it will then be directly in the control of the people of the West Midlands to elect the individual they wish to see exercise the functions of the PCC at the May election. The Government are doing nothing to take that ability away from the electorate with this order; we are simply transferring the exercise of policing governance functions from one directly elected role to another.

Finally, the noble Lord has highlighted the Secondary Legislation Scrutiny Committee’s report on this order, and specifically its finding that an initial decision was made by the Home Secretary to transfer the functions before a public consultation had been conducted. It is true that the Home Secretary communicated an initial decision to the mayor and the PCC for the West Midlands on 6 December. The Permanent Secretary’s response to the committee’s letter has addressed this concern, but for the benefit of the noble Lord and the House, I will also address it.

At the time of the Home Secretary’s decision, the requirement of Section 113 of the 2009 Act to conduct a public consultation was not known to him. It had not been the Government’s intention for the levelling-up Act to place a new statutory test and a consultation requirement on the power to transfer PCC functions to combined authority mayors. However, as soon as the Home Secretary was made aware of this requirement, he launched the six-week public consultation on the proposed transfer and agreed to retake his decision only after he had given due regard to the responses to the public consultation and he was satisfied that the statutory requirements of Section 113 had been met. The decision to make this order was taken on 6 February and supersedes the decision that was communicated on 6 December.

If noble Lords will bear with me a second, I will try to find the relevant statistics, as asked for by the noble Lord, Lord Grocott. I know I have them in my winding-up notes—I will find them in a second.

It is unfortunate that the initial decision was made without knowledge of the statutory requirements, but the appropriate steps were taken to ensure that the decision to make this order was not made until the requirements had been met. I am satisfied that the Home Secretary acted well within the legislation as soon as he became aware of this initial oversight. I call on Members of your Lordships’ House to reject the amendment tabled by the noble Lord. I hope that what I have said provides some reassurance and clarity.

I thank the House for its indulgence; I have found the numbers, with thanks to the noble Lord, Lord Gascoigne. The public consultation ran from 20 December 2023 to 31 January 2024. The Government’s response to the consultation was published when this order was laid before Parliament. The total number of responses received was 7,103—a good deal more than those received by other consultations relating to devolution proposals. Of those responses, 46% agreed with the proposal, 50% disagreed and 4% said that they did not know. I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we on this side of the House consistently support directly elected mayors. We also support them having police and crime powers when boundaries make this appropriate. However, it is not a remarkable point to make that we also believe that, first, the Government should act within the rules set out for them and by them; secondly, that local leaders should be brought along with any proposed changes; and, thirdly, that due and democratic processes should be respected and that consultations should be entered into in good faith, with the intention of listening and reporting back to Parliament in a transparent manner.

It is right that the Government explain not only the initial oversight in terms of the statutory duty but the manner in which the consultation took place. I request that the Government outline how they plan to make this right with local leaders in the region to make it clear to everyone where they now stand, and what will happen to regain the confidence of the people of the West Midlands. Will the Minister commit to further consultation? More widely, and with more regulations to come, I ask the Minister to outline how he will ensure that this approach will not be repeated.

Proper devolution demands that the Government work with local communities and bring on widespread support to produce outcomes that are right for their areas. It also demands that government acts effectively across departments when issues cross Whitehall boundaries. How will the Government ensure that this is done in future?

Of course, we will support my noble friend. He gave a devastating speech when he introduced his amendment. I look forward to the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions. I will do my best to address as many of the points that have been raised as possible.

It is worth recognising the support from the Government and the Opposition in the other place for the policy of enabling more directly elected mayors to exercise PCC functions, as the noble Lord, Lord Ponsonby, just noted. As I outlined in my opening remarks, the exercise of PCC functions by the Mayor of the West Midlands will be a significant step forward to realising the Government’s ambitions, as set out in the levelling up White Paper, for more combined authority mayors to take on PCC functions, as is already the case in Greater Manchester and West Yorkshire, and will be the case in York and North Yorkshire from this May. We have also introduced a draft order to achieve this outcome in South Yorkshire.

It is the Government’s view that bringing public safety functions under the leadership of a combined authority mayor, where it is possible to do so, has the potential to offer wider levers and a more joined-up approach to preventing crime. It places the PCC model and functions at the heart of a wider set of responsibilities for improving public services, exercised by an individual who will be directly answerable to the community that will elect them. It not only preserves the democratic accountability that underpins the PCC model but with an expanded role for the mayor comes a higher public profile, increased visibility and a greater ability to bring about local change.

The fundamental aim of the order is to incorporate the PCC model within the role of the mayor, maintaining the core principles of governance and accountability. The Government want to seize the opportunity to bring together in one elected role the responsibility for public safety and local regeneration for the people of the West Midlands.

In areas where there is a PCC and a mayor, both elected separately by the same constituency, it can confuse democratic mandates and create barriers to joined-up delivery across a range of public services for those communities. The statistics the noble Lord, Lord Scriven, cited do not take into account local circumstances and, therefore, comparisons have limited utility. None of this means that the West Midlands could not still be safer and have less crime under the new proposed system. Incorporating the PCC functions in the office of mayor creates an opportunity to clarify and enhance the mandate of that elected individual to make a greater impact across a range of public services.

As I set out in my introductory speech, the Home Office ran a public consultation on the proposal to transfer the PCC functions. The purpose of the consultation was to provide the Home Secretary with information to help his decision on whether to proceed with the legislation before us now. While the numbers for and against the transfer were taken into account by the Home Secretary, the most helpful aspect of the consultation, for the purposes of making the decision, was the information provided in the responses. The Home Secretary’s decision was informed, but not bound by, the responses to the consultation. In making his decision, the Home Secretary also had regard to information concerning the statutory tests and duties relevant to his decision. Ultimately, the Home Secretary is satisfied that the making of this order meets the statutory tests required of him. I say to the noble and learned Baroness, Lady Butler-Sloss, that this was not a referendum. He took note of all the information and made his decision; the information is not binding.

The Levelling-up and Regeneration Act 2023, specifically Section 62, has come up. That amended the consent requirements for the transfer of PCC functions to existing combined authority mayors and, instead of the previously required consent of the mayor, the constituent authorities and the combined authority, only the consent of the existing mayor is required to make an order enabling the transfer of the functions. This was decided by Parliament.

The Government have been clear that the PCC functions may transfer to a mayor only at the point of a mayoral election; this ensures that mayors are elected on the basis that they will be exercising PCC functions, maintaining the democratic principles of the PCC model. If this legislation is approved by both Houses, both the incumbent mayor and the PCC would complete their existing terms of office, and on 2 May the West Midlands electorate will select a mayor on the basis of them exercising PCC functions, providing them with a democratic mandate. The noble Lord, Lord Hunt of Kings Heath, asserted that Mr Street will be the PCC, and I sincerely hope the noble Lord is right, but he will have to make his case to the electorate and they will determine “who is mates with who”, to quote—I forget who.

It may already be known to this House—I think the noble Lord, Lord Bach, referred to it—that the judicial review launched by the West Midlands Police and Crime Commissioner on the public consultation and subsequent decision to transfer the PCC functions to the mayor was heard by the courts yesterday. Judgment will be reserved until next week, so I cannot prejudice those ongoing proceedings, but the Government strongly defended the claim made by the PCC. We are confident that the public consultation was robust and the Home Secretary’s decision to enable the transfer was lawful.

Regarding the extent to which this transfer upholds democracy, the Government have always been clear that PCC functions can transfer to a mayor only at the point of the mayoral elections, as I have just said. The way this order enables the transfer is no different; the first mayor to exercise the functions will not do so until the May 2024 elections have taken place and they have taken office—I believe on 7 May. The West Midlands electorate still has the ability to decide who they wish to see exercise these PCC functions. The Mayor of the West Midlands will be elected in May on the basis of exercising those.

A number of noble Lords raised concerns that a mayor may—I use the word “may” carefully—appoint a deputy mayor to support them in the exercise of the PCC functions. It was argued that this might be a dilution of the mandate and accountability of the role. At this point, I note that the current PCC has appointed two assistant PCCs. Mayors who exercise PCC functions can appoint a deputy mayor for policing and crime, but this is something that PCCs may also do, as I have just said. The ability to appoint a deputy does not shield mayors from scrutiny at the ballot box; the mayor will be held to account for the performance of a deputy they may appoint to support them. Also, not all PCC functions can be delegated to the deputy PCC; by statute, certain key strategic functions, such as the issuing of the police and crime plan, the appointment and suspension of a chief constable, and calculation of a budget requirement, may exercised only by the mayor themself.

All noble Lords noted the Secondary Legislation Scrutiny Committee report on this order, and the concerns raised in that report. I know the committee has written to the Policing Minister and the Permanent Secretary to express its concerns. I understand that both the Minister and Permanent Secretary have responded to those letters. The committee raised concerns about what it considered to be the “selective reporting” within the Explanatory Memorandum that accompanies this order, and I know that the Policing Minister has responded to address these concerns directly. But I would like to make it clear that the Explanatory Memorandum did not deliberately withhold information in any sort of attempt to selectively report the responses to the consultation and the views of stakeholders. As is best practice, the documents clearly outline the views raised as part of the consultation process, both in support of the transfer and those that raised concerns. The document also signposts readers to the Government’s response to the consultation, which has been published on GOV.UK. It goes into further detail on the concerns raised by respondents to the consultation and the Government’s response to those concerns.

As regards to the timing of the order, raised by the noble Lords, Lord Bach and Lord Sahota, I would like to address those points, particularly in relation to the Gould principle of electoral management, as referred to by the noble Lord, Lord Sahota. Where possible, government aims to ensure that any legislative changes to elections are introduced at least six months in advance of those elections, to give all those involved appropriate notice. In the case of the West Midlands, government was not able to lay the order six months in advance of the May 2024 elections. Every step has been taken to lay as early as possible, and I know officials have been closely engaged with partners in the West Midlands Combined Authority and the office of the PCC throughout the process, to keep them informed as much as possible. I hope noble Lords will support the order, so we can get one step closer to providing clarity to the local area, and enable it to deliver orderly elections in May. As the noble Lord, Lord Bach, noted, as long as that is done by 21 March, all is in order.

A question has been raised about why the Home Secretary took the original decision to proceed with the transfer before the statutory requirements were met. As soon as the Home Secretary became aware of the statutory requirements of the 2023 Act, he launched a public consultation and made it clear that he would retake his decision after he had had due regard to the responses and after he had considered whether the making of the order would meet the statutory tests. The order was therefore not laid before Parliament until the Home Secretary was satisfied that the statutory requirements of the 2023 Act had been met. I hope I have dealt with the key points that have been raised. Again, I thank all those who participated. I beg to move.

[Lord Bach (Lab)]

My Lords, I thank all noble Lords who have taken part in this lively and interesting debate. I am very conscious of the time. I particularly thank the Minister, who had a difficult case to put and did it with politeness and good humour. I also thank Members of the House who have been present, as well as those who have spoken. I will not reply to the comments as I think the case has been made. I wish to test the opinion of the House.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Sharpe of Epsom Excerpts

3rd reading
Tuesday 12th March 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the Bill do now pass.

[Lord Howard of Lympne (Con)]

My Lords, I wish to make a point which I hope may be taken into account by honourable Members in another place, though I fear it is unlikely to find favour with most of your Lordships. I cast no aspersions on the motivation which has led to the amendments your Lordships have passed. An undeniable consequence of most of these amendments would be delay in dealing with an issue which is regarded as important and urgent by very many people in our country—an issue to which no alternative remedy has been advanced. I hope that this point may be taken into account by honourable Members in another place, even if not by most of your Lordships.

--- Later in debate ---

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

My Lords, as the Bill nears completion of its passage through your Lordships’ House, it is obviously timely for me to say a few words. First, I want to say that I heard what the noble Lord, Lord Alton, said. The two responses to the JCHR and the Constitution Committee were cleared this morning and issued this afternoon. I apologise that this has taken a while longer than it should have. They deal with the questions raised by the noble Lord, Lord Kerr. The key point remains, of course, that the Government will ratify the treaty only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. We have dealt with that at some length over the passage of the Bill.

I think we can all agree that there is common ground in the view that we need to stop the boats. We need to prevent the tragic loss of lives at sea and bring to an end the horrid trade of the criminal gangs who are exploiting people for financial gain. Where there is disagreement is on the means by which we can achieve that and the strength of our desire to carry out the will of the British public—to control our border and tackle this global crisis of illegal migration. I note the point made by the noble Lord, Lord Alton, that it is a global crisis that will inevitably require global solutions.

The Government have made progress towards stopping the boats. Small boat crossings were down by a third in 2023, when our joint work with France prevented more than 26,000 individuals crossing by small boat to the UK. There is, however, more to do. As we have made unequivocally clear, to stop the boats and prevent people taking such perilous journeys across the channel, we need to send out a message that if you arrive in the United Kingdom by such means, you will not be able to stay.

We need to be able to take bold and innovative steps to create a strong deterrent that will stop the loss of lives at sea. Our partnership with Rwanda provides just that. The new, legally binding treaty with the Government of the Republic of Rwanda responds to the Supreme Court’s concerns, reflecting the strength of the Government of Rwanda’s protections and commitments. Under our new legislation, migrants will not be able to frustrate the decision to remove them to Rwanda by bringing systemic challenges about the general safety of Rwanda. It is imperative that the scheme as provided for in this Bill is robust and sends the unambiguous message that if you enter the UK illegally, you will not be able to build a life here. Instead, you will be detained and swiftly returned either to your home country or to a safe third country.

In light of the non-government amendments agreed by your Lordships’ House on Report, it is clear that many noble Lords in this House do not agree on how to end the misuse of our immigration process. However, it is not an option for us to not act: without a plan or an alternative approach, more lives will be tragically lost at sea and the financial burden on the British taxpayer will grow as millions of pounds continue to be spent each day accommodating people in hotels. We have spoken at length about the protections needed for various vulnerable cohorts of people, which we are satisfied this Bill and partnership will provide. However, as I have said repeatedly, the people to whom we refer are those who have already reached a country of safety, where they could and should have claimed asylum.

As the noble Lord, Lord Dubs, noted, there was some debate on Report about consultation with the Crown dependencies. The Government, of course, recognise the concerns raised by some noble Lords and remain committed to consulting the Crown dependencies on any legislation which might affect them, including on the inclusion of a permissive extent clause, but I am grateful to the noble Lord, Lord German, for clarifying.

Although I have no doubt that the amendments passed by this House are well intended, some do indeed—as my noble friend Lord Howard noted—seek to undermine the core purpose of the Bill and would continue to allow relocations to Rwanda to be frustrated. No doubt, our debate on such matters will continue.

That said, I want to take this opportunity to thank noble Lords for their valued contributions during the passage of the Bill through this House. I want to express my appreciation to the noble Lords, Lord Coaker and Lord Ponsonby, for the courteous manner in which they have engaged with me on the Bill. I thank them also for their warm words. I also wish to extend my thanks to the noble Lord, Lord German, and his Front-Bench colleagues for their clarity of views, albeit ones with which I have not agreed.

I want also to record my gratitude for the invaluable support and assistance of my noble and learned friend Lord Stewart of Dirleton. I must also put on record my thanks to the Bill team, my private office, and all the officials and lawyers in the Home Office and the Ministry of Justice who have provided such thorough support and expertise.

In conclusion, the purpose of this Bill is to deter dangerous and illegal journeys to the United Kingdom, which are putting people’s lives at risk, and to disrupt the business model of the people smugglers who are exploiting vulnerable people. This Bill reflects the strength of the Government of Rwanda’s protections and commitments given in the internationally binding treaty to people transferred to Rwanda in accordance with the treaty. Alongside the evidence of changes in Rwanda since the summer of 2022, this Bill will enable Parliament to conclude that Rwanda is safe. I have no doubt that we will shortly be debating these matters vigorously again, but, for now, I beg to move.

Bill passed and returned to the Commons with amendments.

Operation Conifer

Lord Sharpe of Epsom Excerpts

Monday 11th March 2024 Lords Chamber

[Lord Lexden]

To ask His Majesty’s Government whether they plan to appoint a senior lawyer to review the seven allegations against Sir Edward Heath left unresolved at the end of Operation Conifer in 2017.

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

My Lords, the Government have no plans to appoint a senior lawyer to review the outstanding allegations against Sir Edward Heath. It remains for the local police and crime commissioner to consider whether an inquiry, or any other form of further review, is necessary.

[Lord Lexden (Con)]

My Lords, I am accustomed to disappointing replies, but I had hoped for something a little more positive on this occasion. I remind the House of the wide cross-party support that has been expressed on numerous occasions for action to address the grave harm done to the reputation of Sir Edward Heath by the failure of the police investigation in Wiltshire to clear up all the foul allegations made against him long after his death. Is it not important to remember that four of the seven unresolved allegations to which my Question refers could not possibly be true, as I made clear in a debate in January? There is good reason to suppose that the other allegations are also groundless, which is why a limited review of these seven unresolved allegations is imperative.

[Lord Sharpe of Epsom (Con)]

My Lords, in October 2018, the then Home Secretary, Sir Sajid Javid, wrote to Lord Armstrong following a meeting with him and other Peers to discuss Operation Conifer and related matters. In that correspondence, the then Home Secretary wrote:

“As I think you would agree, the real issue here is not so much Operation Conifer itself, but the inconclusive nature of its findings and what you describe as ‘the cloud of suspicion that … continues to hang over Sir Edward Heath’s memory and reputation’ … it is not clear to what extent a further review of the existing evidence by a judge or retired prosecutor would resolve this. It remains my view that the handling of this is properly a matter for the local PCC and that it would not be appropriate for me to seek to persuade him how he should go about it”.


That largely remains the case, and the current Home Secretary wrote in answer to a Parliamentary Question on 7 February that

“the Government has no plans to commission a review of either the conduct of the investigation … or the findings”.

We are aware of no direct precedent for the type of review that my noble friend calls for. However, I am happy to ask officials to look into this to see whether it is either possible or viable, and I will report back in due course.

[The Senior Deputy Speaker (Lord Gardiner of Kimble)]

My Lords, the noble Lord, Lord Campbell-Savours, is taking part remotely. I invite him to speak.

[Lord Campbell-Savours (Lab) [V]]

My Lords, why perpetuate the existence of these allegations by refusing to establish the independent review we have all called for for years? No one has ever produced a shred of evidence. The allegations are based on the early ranting of Carl Beech, a proven liar now languishing in prison. What possible benefit is to be gained by leaving on the table accusations that tarnish the reputation of a former British Prime Minister, over which historians will argue? I simply cannot understand the Government’s hesitation, and neither can anybody else I speak to.

[Lord Sharpe of Epsom (Con)]

The noble Lord obviously makes a good point, and I have just committed that we will certainly look into this. But, as he will be aware, there were a number of forms of scrutiny during the investigation. There was an independent scrutiny panel to ensure proportionality. There were two reviews by Operation Hydrant, in September 2016 and May 2017, which concluded that the investigation was proportionate, legitimate and in accordance with national guidance. There was a review in January 2017 by HMICFRS, as it was then, into whether the resources assigned to the investigation by the Home Office were being deployed in accordance with value for money principles. In November 2017, the PCC referred two matters concerning the then chief constable to the IOPC. This has been extensively looked at by external and independent bodies already, but we will, as I say, look into the possibility or viability of other reviews.

[Lord Birt (CB)]

My Lords, for decades, Edward Heath was guarded day and night by police and supported by domestic staff. As a young television producer, I met him many times. Indeed, I made a one-hour documentary about him while he was Prime Minister, spending a lot of time in his presence and talking widely, during the course of the making of this, to many people who knew him well. I find it hard to believe—indeed, I think it is impossible—that Edward Heath was a practising paedophile, and it is deeply unjust that a shadow of suspicion should be allowed to hang over him unresolved. We have a dreadful record in this country—a long list in recent times—of wrongs that have not been righted. Please can we put this wrong right?

[Lord Sharpe of Epsom (Con)]

My Lords, I reiterate that the investigation summary closure report stressed that no inference of guilt should be drawn from the conclusion that Sir Edward would have been interviewed in a very few cases. I shall not go further to comment on the operational nature of the original investigation.

[Lord Sherbourne of Didsbury (Con)]

My Lords, is not there a puzzle here, in that the Home Secretary, James Cleverly, is a decent and fair man? Surely he understands that it is unacceptable that a former Prime Minister, a man of great integrity, should still have these unsubstantiated allegations circulating around him, which could besmirch his reputation. Does my noble friend the Minister not agree? If he could come to this House to say that the Home Secretary is taking action on this point, it would command great support across all parts of the House.

[Lord Sharpe of Epsom (Con)]

Well, as I have said, and I say again to my noble friend, I have heard the strength of feeling in the House on a number of occasions, which is why I asked the Home Secretary to review the Hansard of our recent debate in some detail. He replied to that debate on 7 February, and I really cannot improve on what he said.

[Lord Dholakia (LD)]

My Lords, the noble Lord, Lord Lexden, is right to be disappointed with the reply that he received from the Minister. No police service has a right to review its own special operation. In this country, we have what we commonly call the police conduct authority. Would the Minister recommend to the authority that it looks at the results of the Conifer investigation to see whether the decision that it reached was legal, honest, decent and true?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I remind the noble Lord that I have just gone through the various forms of independent scrutiny to which this investigation was subject in some detail, and I shall not refer to it again. As I say, the IOPC and others have looked into this in some detail.

[Lord Bach (Lab)]

My Lords, is the Minister aware that, at the end of his response to the noble Lord, Lord Lexden, he seemed to throw out just a little bit of encouraging information. I welcome that, and hope that the Minister goes back, recognising the very widespread feeling around this House that justice has not been done to the reputation of a Prime Minister who has been unfairly treated, right up to this time. It is important that justice is done soon, rather than the issue hanging on for year after year of non-action.

[Lord Sharpe of Epsom (Con)]

I can only repeat that I have said that I shall ask officials to look into the possibility or viability of this—I cannot possibly prejudge what they may come back to me with, but I shall come back to the House in due course.

[Lord Butler of Brockwell (CB)]

My Lords, I hope that the noble Lord, Lord Lexden, and the House take a little encouragement from what the Minister said today. When the noble Lord, Lord Lexden, had his last debate, I entered the debate thinking that it was not worth having the expense of a public inquiry into reports that nobody believed, and I was persuaded by the debate that we could not leave this injustice on the table. This suggestion seems to me to be an economical way of disposing of it—a report by a distinguished lawyer. Could the Minister please encourage the Home Secretary to look very carefully at that and allow it to happen?

[Lord Sharpe of Epsom (Con)]

I cannot honestly say whether it would be economic or not, for obvious reasons—I do not know yet. But I shall certainly make the strength of feeling known once again to the Home Secretary.

[Lord Hunt of Wirral (Con)]

I recognise now that my noble friend the Minister is aware that the mood and will of this House is very much behind my noble friend Lord Lexden and his call for justice. Whatever his briefings may say, there really has been no independent investigation of the flawed processes of Operation Conifer. As the noble Lord, Lord Butler of Brockwell, has just said, perhaps there is at last an opportunity. Please would my noble friend the Minister take every advantage of this opportunity and put right the injustice that we all feel so deeply has been done?

[Lord Sharpe of Epsom (Con)]

Well, once again I hear what my noble friend says, and I shall certainly do my best to represent the views that have been very firmly expressed in the House by taking them back to the Home Secretary and the Home Office.

[Lord Watts (Lab)]

My Lords, is it not the case that this is not a unique case? The problem is that names are released before people are charged. Is it not about time that we looked at that as an issue, not just for this case but for many others?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The noble Lord raises a very interesting point and, again, I will take that back.

Former Independent Chief Inspector of Borders and Immigration: Reports

Lord Sharpe of Epsom Excerpts

Wednesday 6th March 2024 Lords Chamber

[Lord Browne of Ladyton]

To ask His Majesty’s Government what assessment they have made of the release on 29 February of 13 reports produced by the former Independent Chief Inspector of Borders and Immigration, and their findings in particular with regard to the conduct of staff responsible for unaccompanied refugee children in Kent.

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

My Lords, last Thursday we published 13 reports that were outside the normal eight-week commitment to review and respond. We also published the Government’s responses. We take the ICIBI reports seriously and do not wait until their publication to act on their recommendations. We have already implemented several of those recommendations. As regards the incident at the hotel, there was an immediate investigation and the support worker in question was removed.

[Lord Browne of Ladyton (Lab)]

My Lords, the reports are damning, documenting the disappearance of 467 asylum- seeking children and Home Office employees asking lonely unaccompanied children to play a cruel guessing game as to which of them will receive foster care; and revealing systemic failures at the border and in the asylum decision-making process. It beggars belief that David Neal was not sacked for revealing these truths, or that his 13 reports were not released en bloc to minimise security. Who ultimately is responsible for the culture of defensiveness in the Home Office, which Neal suggested had allowed these failures over time to go unchecked? If the Minister disputes this characterisation, can he inform your Lordships’ House in what respect the comprehensive evidence provided in the reports that support his assertion is mistaken?

[Lord Sharpe of Epsom (Con)]

I am afraid I do dispute that characterisation. David Neal had his appointment terminated after he broke the terms of his contract and lost the confidence of the Home Secretary, because he released sensitive and misleading information from unpublished reports, well within the time commitment for publication. The Home Office had therefore not had time to fact-check and redact inappropriate material. I will give an example of the fact-checking required in some cases: the asylum casework report contained 67 factual inaccuracies, the vast majority of which were indeed accepted by the ICIBI. It is important to mention that a new inspector will be appointed following a full and proper process.

As regards the situation in the hotel, as I said, on both occasions of the inspection, the ICIBI found that children accommodated temporarily at the hotels reported that they felt happy and safe and spoke well of the staff caring for them. But, once we learned about the incident from the chief inspector, there was an immediate investigation and the support worker in question was removed and did not return.

[Baroness Berridge (Con)]

My Lords, your Lordships’ House spent many hours considering the Illegal Migration Bill, which considered the law to enable the Home Office to accommodate vulnerable children. Major concerns were raised at that time. Indeed, the Children’s Commissioner has said that it is “not appropriate” for the Home Office to accommodate vulnerable children—it is not its expertise. Will my noble friend the Minister accept her offer, in these circumstances, to conduct an inquiry and find out exactly what has been going on with what is obviously a most vulnerable group of children, many of whom are primary school age?

[Lord Sharpe of Epsom (Con)]

My Lords, since the two ICIBI inspections, in 2022 and 2023, we have closed all seven hotels used to accommodate unaccompanied asylum-seeking children. It goes without saying that the safety and welfare of unaccompanied asylum-seeking children is a priority. The multidisciplinary wraparound care provided in the hotels, including access to nurses and social workers, ensured that children were supported around the clock.

On whether they were of primary school age, I am afraid I do not recognise those numbers. I can update the House: as of 5 March, 118 children are still missing; 104 of those are Albanian, all of them are male, and the vast majority were aged 16 and 17 when they went missing. Only about 18 are still under the age of 18. It is not quite the picture that my noble friend painted.

[Baroness Lister of Burtersett (Lab)]

My Lords, the chief inspector was due to start an inspection on the age assessment of unaccompanied asylum-seeking children shortly. What will happen to this now that he has been sacked? If an interim inspector is appointed, as was suggested by the Minister in the Commons, could he be encouraged to look at this, given all the accumulating evidence of the wrongful age assessment of children?

[Lord Sharpe of Epsom (Con)]

This is obviously a subject to which we will return a bit later, but as I said, a new chief inspector will be appointed following a full and proper process in accordance with the Governance Code on Public Appointments. The Home Secretary is considering appointing an interim chief inspector to cover the period of recruitment. What his remit will be I do not know, but of course we will come back in due course.

[Baroness Brinton (LD)]

My Lords, since autumn 2022, we have had a number of Questions and Statements on the status of the Home Office as corporate parent when there is a gap before the appointment of a council. Indeed, on 23 January last year, my noble friend Lord Scriven asked when the Home Office was going to become a corporate parent, and the Minister at the time said that he would take it back and discuss it. The recently published ICIBI report covering an inspection in September and October last year says that

“the Home Secretary’s use of hotels to accommodate unaccompanied asylum-seeking children was unlawful. The Home Office has been running unregistered children’s homes for two years now, when these children should be in the … care of Kent County Council”.

Can the Minister confirm that the Home Office no longer has an invisible corporate parent responsibility without actually doing it lawfully?

[Lord Sharpe of Epsom (Con)]

My Lords, as I said, we have closed the seven hotels that were used to accommodate unaccompanied asylum-seeking children, as identified in the two ICIBI inspections. As the noble Baroness will be aware, the Home Office will return to the High Court on 14 March as part of the ongoing High Court oversight of the Kent County Council case, so I will say no more on that at the moment.

[Lord Carlile of Berriew (CB)]

My Lords, the chief inspector raised the issue of the national security risk caused by general aviation—that is, private aviation, a subject which has caused concern to successive Independent Reviewers of Terrorism Legislation going back over many years. Can the Government assure the House that this issue has been given close attention in recent weeks, despite any disagreements with the chief inspector?

[Lord Sharpe of Epsom (Con)]

Yes, I can give that assurance. I would also reassure the House that Border Force facilitated 132 million passenger arrivals last year and 96% of passengers were processed within service standards. Significant progress has been made since that report was commissioned on increasing the number of officers who are trained appropriately.

[Lord Coaker (Lab)]

My Lords, the Minister gave us an updated figure—that 118 children are still missing. That is truly shocking: the state has lost 118 children. What was lacking in the Minister’s answer was any description of what the Government are doing to try to find those children. What effort is being made to locate them? What liaison is taking place with police, social services and children’s services across the country? I say again to the Government: they have lost 118 children. If the state were a parent, it would be prosecuted.

[Lord Sharpe of Epsom (Con)]

The noble Lord has made that point before. Of course, we are unable to detain anybody, so when he characterises them as being lost, they have left as much as anything else. When they go missing from hotels, a multiagency missing persons protocol is mobilised, alongside the police and local authorities, to establish their whereabouts and ensure they are safe. Many of those who go missing are subsequently traced and located. The Home Office continues to review and improve practices around preventing children going missing, including work with the National Police Chiefs’ Council, which is publishing, and has published, guidance on missing migrant children. I say again: the vast majority of these were aged 16 and 17. Only 18 are still aged under 18.

[Lord Purvis of Tweed (LD)]

The Government’s Rwanda Bill will now contain measures that will allow unaccompanied children to be relocated to Rwanda, and the Government have published a country note for Rwanda stating that it is a safe country. Normally, country notes are reviewed by the independent commissioner, but David Neal’s office confirmed to me on 17 January that the Government had not yet asked for an independent review of their country note statement that Rwanda is a safe country. Now that there is no independent reviewer, how will Parliament know that that statement has been reviewed by an independent commissioner?

[Lord Sharpe of Epsom (Con)]

To start with, the noble Lord is incorrect in saying that unaccompanied children will be sent to Rwanda; as he is well aware, that is prohibited under Article 3 of the treaty. On the review, the ICIBI started on the country-of-origin information but that has not yet been sent to the Home Secretary. That is one of the ongoing pieces of ICIBI work that cannot be finalised until a new or interim ICIBI has been appointed, and I cannot comment on that process yet.

[Lord Brooke of Alverthorpe (Lab)]

Do we not have thousands of people in this country who should not be here, but of whose whereabouts we have no knowledge? Had the Government and the Lib Dems not abolished the Labour Party’s plan to introduce an identity system, we would know where they were.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very interesting point.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the Government got confused and in a bit of a mess about assessing the age of many people coming into the country. Further to the question from the noble Baroness, Lady Berridge, how can the Government be sure that the number of primary school-age children is accurate, according to their judgment?

[Lord Sharpe of Epsom (Con)]

As the noble Baroness will be aware, there are a number of different views on this. Age assessments go both ways. I was reading of a case earlier where a number of children requested that one of their number who had been imposed on them be looked into because the said person was significantly older than he appeared to be, and that was found to be the case. It works both ways.

Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024

Lord Sharpe of Epsom Excerpts

Wednesday 6th March 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations and Order laid before the House on 18 October 2023 and 31 January be approved.

Relevant documents: 13th Report from the Secondary Legislation Scrutiny Committee, 1st Report from the Joint Committee on Human Rights. Considered in Grand Committee on 5 March.

Motions agreed.

Angiolini Inquiry Report

Lord Sharpe of Epsom Excerpts

Tuesday 5th March 2024 Lords Chamber

[Baroness Doocey (LD)]

My Lords, what happened to Sarah Everard was horrific, and made worse by the fact that this callous murder was committed by a serving police officer. The report says that Wayne Couzens should never have been a police officer and that numerous opportunities to end his career were ignored. It lays out a number of steps to ensure that this appalling tragedy is not repeated.

The Minister has promised decisive action and outlined several welcome measures, yet the vehicle required to take such action is available to him now. The Criminal Justice Bill is due to reach this House in the coming weeks. As it stands, the charity Refuge says it is seriously disappointed with the Bill’s measures on police perpetrators, which it believes will do very little to rid our forces of abusers.

The Government have so far resisted a series of amendments, such as one that would mean all allegations of police-perpetrated domestic abuse would be recorded —either as a police complaint or a conduct matter. This would inform vetting and any potential future investigations. Will the Minister reconsider placing such provisions in the Bill, rather than falling back on regulations and, worse still, voluntary codes of practice, which seldom if ever work?

Does the Minister accept that the time has now come to spell out, in no uncertain terms, that violence against women and girls is not acceptable if you are a police officer? That surely means being clear that domestic abuse is not just a criminal matter but a disciplinary matter within the police services themselves.

I also want to address the issue of consistency. At the moment, there is too much variation around the country, and the issue of warrant card removal illustrates this well. In some forces, officers are required to surrender their warrant cards if they are suspended; in other forces, they are not. Sarah Everard’s murder horribly underlines the power that comes with a warrant card. At the very least, surely suspended officers should be required to surrender warrant cards nationwide. This is something that the Domestic Abuse Commissioner is calling for.

Another matter of consistency is on the issue of suspensions themselves. The Government are now saying that there will be an automatic suspension of police officers charged with certain criminal offences pending trial. Can the Minister confirm that domestic abuse offences will be among those leading to suspension?

The Government are planning to change the rules to make it easier for forces to remove officers without vetting clearance. However, removing those who fail vetting or are guilty of gross misconduct will still not be a legal obligation. These measures will not be mandatory or backed by primary legislation. A Liberal Democrat freedom of information request last October revealed that 129 Metropolitan Police officers were still working on the front line while under investigation for allegations of sexual or domestic abuse, eight months on from the Casey review. This is, frankly, a disgrace.

Meanwhile, a clear issue with culture and leadership remains to be addressed. This is particularly critical in the context of an increasingly young and inexperienced workforce, a third of whom have less than five years’ service. The Police Foundation describes a

“culture of silence and complicity”,

where the default is to keep quiet if you want to get on or fit in. This report rightly says that our police must be held to a higher standard of behaviour and accountability given the powers that they have. Good officers will welcome anything that does this.

Time and again, we have had excellent reports which identify the issues and make recommendations to stop them happening again. Most of the recommendations are accepted, but they are seldom, if ever, implemented. Can the Minister explain what the Government propose to do to ensure a full and speedy implementation of the recommendations in this report? Crucially, can he also say what the consequences will be for those forces that fail to comply?

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

I thank both noble Baronesses for their comments. The first thing to say, which I said earlier, is that my thoughts are with the family and friends of Sarah Everard.

The second thing, highlighted by the noble Baroness, Lady Thornton, and which it was remiss of me to neglect to say earlier, is that we owe it to all the decent police officers out there—there are very many, who I would like to thank—to get this right. Finally, I place on record my thanks to Lady Elish, who has delivered a very efficient, speedy report. This is obviously only part 1. I note that part 2 is considering cultural issues, which include misogyny and predatory behaviour. There will be much more to say on that subject, which is not to say that we should not act speedily and efficiently now—and we are. I will explain how.

The vetting process has come in for a considerable amount of criticism, with some justification. The noble Baroness, Lady Thornton, asked why the Government are not legislating to put vetting standards on a statutory footing. The report did not specifically recommend that the Government legislate on vetting standards. As I have just said, part 2 will look in depth at vetting and recruitment, among other cultural issues in policing. We will consider any findings from part 2 in due course. However, we expect policing to examine the Angiolini findings from part 1 in detail, and for them to be addressed.

To ensure that forces are adhering to the existing standards, as set out by the College of Policing, the college will establish a process of national accreditation, setting out the high standards that policing must meet, with the aim of increasing confidence in policing. We are introducing regulations on vetting, which will make it easier for forces to remove those who cannot hold the minimum level of clearance.

As Lady Elish says in her report, it is not possible to

“make any conclusive finding that earlier interventions would have prevented the horrific crimes”

that the report responded to. However, I do not think that Couzens would have been able to remain a police officer if he was serving today—I think it is important to state that for the record. Vetting has been significantly tightened, and tolerances are lower. Forces now do a full re-vet on transfer. Lady Elish highlighted that that is clear in the new vetting code. There is also a data wash process. We are funding policing to develop automated screening, so that records added to the police national database, such as the indecent allegations made against Couzens in 2015, will be quickly picked up by the employing force.

In January 2023, the then Home Secretary asked HMICFRS to carry out a rapid review in response to the November 2022 inspectorate report into vetting. That also looked at what forces are doing to identify and deal with misogynistic behaviour. The inspectorate identified good process in certain areas, and in January this year, the NPCC provided evidence on the implementation of relevant recommendations across forces to the inspectorate. We have also asked the College of Policing to strengthen the statutory code of practice, which I have mentioned. That code was published in July 2023. I referred earlier to the authorised professional practice guidance which is available for public consultation. Finally, in January 2024, the Home Office agreed to provide an additional £500,000 to policing to develop a continuous integrity screening system for the workforce, building on the data wash exercise.

Recommendation 6 is for the NPCC, and I hope it will implement it as quickly as possible—indeed, that goes for all of the recommendations. We discussed some of them earlier, and they all make perfect sense to me. I hope they make perfect sense to others, as well.

The noble Baroness, Lady Thornton, asked about indecent exposure and whether the police are taking such offences seriously enough. In accordance with the strategic policing requirement, we expect that all sexual offending, including for cases where there is no contact, is taken seriously, because we want victims to have the confidence to report these offences. We need them to know that they will get the support that they need, and that everything will be done to bring the offenders to justice.

As noble Lords will be aware, we have added violence against women and girls to the revised strategic policing requirement, which means that crimes that disproportionately impact women and girls, such as indecent exposure, are set out as a national threat for forces to respond to, alongside other threats such as terrorism, serious and organised crime, and child sexual abuse. The strategic policing requirement is set by the Home Secretary and provides clear direction to policing. It highlights where police forces need to work together, using their local and regional capabilities. This requirement covers all forms of violence against women and girls. We continue to work closely with the National Police Chiefs’ Council’s violence against women and girls task force to drive improvements in the policing response. It will soon publish an updated national framework on how policing needs to prepare, prevent, pursue and protect to robustly improve policing’s response to these crimes.

The report found that what might be considered “lower-level sexual offending”, such as Couzens sending unwarranted pictures of himself, could lead to more serious sexual assault. Obviously, as I have said, we regard that any kind of sexually motivated crime is abhorrent and should be treated very seriously. Women need to be confident in calling the police and reporting crimes, and to trust that they will be taken seriously when they do. As I have said, in tandem with policing partners, we will be considering Lady Elish’s recommendations very carefully and will respond fully after a review of all of the content. I am afraid that I cannot give a timetable as to recommendation 4, but, as I said earlier today, we will be responding in full very soon.

In terms of women joining the police, I looked up the statistics after the noble Baroness, Lady Doocey, asked me about it earlier, and they are not as bad as I might have inferred. The 20,000 officer uplift programme provided a once in a generation opportunity to support forces. The police force is now more diverse than ever, with 53,080 women police officers and 12,086 ethnic minority police officers; this was as of 31 March 2023, so those numbers will have changed. Females accounted for 35.5% of officers—the highest number and proportion in post since comparable records began. Between April 2020 and March 2023, 43.2% of new police officer recruits in England and Wales were female—a notable increase on levels in previous years. I will not go into more detail, but it is an encouraging picture and a good start when it comes to the cultural change that we have been talking about at some length.

The noble Baroness, Lady Doocey, also asked a good question which I was unable to answer about how officers and police staff should be encouraged to call out wrongdoing when they see it. I will go into a bit more detail about this, though I suspect it is not as much as the noble Baroness would like. Police officers have a statutory duty to report wrongdoing by their colleagues when they see it, and not doing so constitutes a breach of their standards of professional behaviour. The noble Baroness referred to the Criminal Justice Bill; a duty of candour is included in that, which will help this progress significantly.

There are a number of other routes, both internal and external, through which police officers and staff can raise concerns. External routes include staff associations, trade unions, the office of the relevant PCC if the matter concerns the chief constable, Crimestoppers and the Independent Office for Police Conduct. A police officer can report wrongdoing directly to the professional standards department within their force. Most police forces in England and Wales have reporting phone lines, many with protections for anonymity. A reporting line run by the IOPC enables officers and staff to report concerns that a criminal offence has been committed or where there is evidence of conduct that would justify disciplinary proceedings. I appreciate that this does not fully answer the question about others who might report domestic abuse, but I will take those comments back and find out what can be done about it.

I appreciate that I am running over time. With the indulgence of the House, I will quickly finish by talking about recommendation 5, which is what the Government have done or should be doing to try to change societal attitudes towards women and girls. It is important to highlight the Government’s Enough programme, which is designed to deliver a generational shift in the attitudes and behaviours underpinning abuse. The campaign has a continued focus on encouraging bystanders to challenge safely any abuse they may witness and to trigger reflection among perpetrators and their peers. Evaluation of Enough has shown that it is successfully reaching target audiences, driving behavioural change and encouraging bystanders to intervene when they see abuse. This has been helped by the creation of a STOP mnemonic which is proving highly effective.

I will finish there for now, though I am sure there is more to be said on this subject. Recommendation 5 makes considerable sense. I will certainly be taking the suggestion from the noble Baroness back to the Home Office.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, it is important to say in response to the remarks and questions from the noble Lord, Lord Browne, that Lady Elish did not find any evidence of that particular name being applied to Couzens. That was explicit in the report. This is not the same as explaining away the accountability of the officers who were perhaps aware of his behaviour.

As the noble Lord will be aware, in January 2023 we launched a comprehensive review into police dismissals. As a consequence, we are making significant change to the way in which these dismissals are handled. We have made changes to the composition of misconduct panels by replacing legally qualified chairs with chief officers—something which chief officers have asked for—and this will be implemented in May 2024. We have streamlined the performance system to make it more efficient and effective; this is due to be implemented in late summer 2024. A new route to discharge officers who fail to maintain basic clearance is also due to be implemented in late summer. Changes to the misconduct system, including a presumption of dismissal for gross misconduct, a presumption of fast-track hearings for former officers and convictions for indictable offences automatically amounting to gross misconduct are also due to be implemented in the summer of 2024. The dismissals process has clearly been tightened up and will be tightened up further during the course of this year.

I cannot really comment on the pensions issue. I hear what the noble Lord has said, and I will make sure that the Home Office is well aware of his concerns.

[Baroness Hughes of Stretford (Lab)]

My Lords, recommendation 14 says:

“With immediate effect, every police force should commit publicly to being an antisexist, anti-misogynistic, anti-racist organisation in order to address, understand and eradicate sexism, racism and misogyny, contributing to a wider … culture … This includes properly addressing—and taking steps to root out—so-called ‘banter’ that often veils or excuses malign or toxic behaviour in police ranks”.


What concerns me is that this kind of finding has been repeated in more or less every investigation, inquiry and report into police malpractice for decades. Yet here we are again, with this report concluding that police leaders, whose responsibility it is to address those issues, have not taken a stand on them and stamped them out. As my noble friend just pointed out, in many instances the unacceptable behaviour of individuals is in plain sight among their colleagues and has gone unchallenged. My concern is the process by which the detail of the responses, which my noble friend on these Benches and the noble Baroness on the other Benches referred to, will be decided. Given the history of this, I do not feel that it can be left to individual chief constables—or even to police organisations such as the College of Policing, much as I respect them—to come to the conclusions that are necessary. The process needs to be absolutely transparent for the public—as well as other police officers, who have been referred to—to feel confidence in it.

I have some questions for the Minister. First, how would he intend to involve people with lived experience of these kinds of behaviours of the police and organisations that represent women in particular, as well as other people who have been discriminated against? Secondly, I will take up the point that my noble friend raised. The Minister referred to the statutory duty to report wrongdoing. What is wrongdoing? At the moment, it would appear that it does not include the kind of vile behaviours and verbal comments that we have seen in relation to Couzens and elsewhere. If there is a requirement of police officers and staff to report anybody who expresses discriminatory, sexist or misogynistic statements, I would like to see the Government commit to strengthen it. That should definitely be included in the definition of wrongdoing.

[Lord Sharpe of Epsom (Con)]

Is it not lamentable that recommendation 14 had to be written at all in the 21st century? Frankly, it is pathetic that we still have to have this conversation about such behaviour. The noble Baroness is absolutely right that this is about leadership and culture, and the Home Secretary was extraordinarily explicit on that subject, as I referenced earlier. The culture change has to come from the top; leaders are responsible for setting the standards, and we obviously expect them to keep pushing for improvements to be made across policing.

The recommendation is directed at police forces. It is important to remember that there is local accountability via the office of the police and crime commissioner, and that local accountability absolutely should be engaging with all sectors the community—the people who elect them, after all—to do precisely that. However, the Government have invested in the College of Policing’s National Centre for Police Leadership, which has already set out national standards for leadership at every level. That has to be embedded across forces, so that officers at every rank know what is expected of them and what development they need to get there. That also goes back to a question that the noble Baroness, Lady Doocey, asked me about consistency, which I did not answer: she is 100% right that there is a lack of consistency across police forces. Of course, when all ranks are trained nationally, that will introduce the element of consistency that we clearly need.

I completely agree with the noble Baroness, Lady Hughes of Stretford. However, as the recommendation is directed at police forces, I have to maintain the operational independence line, as it is entirely appropriate that police forces should be free from central government control. Nevertheless, there is local control that could certainly exercise the type of oversight that the noble Baroness wants.

[Lord Beith (LD)]

My Lords, the Minister referred to local accountability. Is he satisfied that the various assurances and procedures that he described will apply to the Civil Nuclear Constabulary and other forces that do not have local accountability?

[Lord Sharpe of Epsom (Con)]

The noble Lord raises a good point. The Civil Nuclear Constabulary comes under the atomic energy people—I forget their precise title—and was referenced in Lady Elish’s report. I have not been party to the conversations that are going on there; I imagine that they are ongoing, and I would like to report back in due course, when I can. Obviously, I cannot say more at the moment.

[Baroness Goudie (Lab)]

Is it not right that when police officers commit such offences their pensions should also be suspended immediately as part of the punishment?

[Lord Sharpe of Epsom (Con)]

I cannot say that it is right across the board; I do not know. It would obviously have to be decided on a case-by-case basis. The way that we have changed the dismissals process will, I hope, give that decision-making power to the right people and make the dismissals process much easier for them to navigate. As I said, it would be foolish of me to say a blanket yes or no; it depends on the case.

Police Recruitment: Reform

Lord Sharpe of Epsom Excerpts

Tuesday 5th March 2024 Lords Chamber

[The Lord Bishop of Manchester]

In begging leave to ask the Question in my name on the Order Paper, I declare my interest as co-chair of the national police ethics committee.

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

My Lords, the horrific crimes committed by a then serving police officer shocked the nation and undermined public confidence in the police. My thoughts are with the family and friends of Sarah Everard; I cannot imagine how painful this must be for them. In the years since, the Home Office has worked closely with policing partners to strengthen the way that police officers are recruited, vetted, scrutinised and disciplined. The Government will continue to work with policing partners to consider the findings and recommendations of this report at pace, and will respond fully in due course.

[The Lord Bishop of Manchester]

I thank the Minister for that helpful reply. The Angiolini report makes one thing very clear: the appalling long-term toleration of the killer’s abusive and criminal behaviour was made possible by two related factors. The first is a misogynistic culture, and the second is the persistence of employment practices that discourage women from joining, remaining and progressing to senior roles within police forces. Do His Majesty’s Government accept that the culture of UK policing needs an overhaul? What specific steps will they undertake to reform recruitment and retention to ensure that female officers and staff can thrive in policing, and thrive in the numbers necessary to ensure that women in Britain need no longer fear the dangers that led to the death of Sarah Everard?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The right reverend Prelate in effect asked me two questions. Decisions about police recruitment, including how recruitment and selection processes are run, are a matter for chief constables and police and crime commissioners, and are therefore managed locally by forces. But they are managed within a national application, assessment and selection framework, which is in line with guidance maintained by the College of Policing. That guidance was updated in February 2023, and all 43 forces are now utilising the various online assessment protocols and the face-to-face requirements.

On the culture of the police, it is difficult to disagree with my right honourable friend the Home Secretary, who said that

“the best processes and structures in the world cannot replace focus and leadership. It is incredibly important that leadership at every rank in policing takes that seriously”.—[Official Report, Commons, 29/2/24; col. 456.]

This is a conversation that he has had with police leaders and the College of Policing to ensure that the attitudes highlighted in the report change. Without that shift in attitude, the culture will remain the same, which is clearly not acceptable.

[Lord Bird (CB)]

Has the Minister ever looked at the fact that we are talking about a class issue here? Most police officers come from the class that I come from, and most of the leading people who run the police force come from another class. It is a bit like the Army. When are the middle classes going to join the police force and create a mix, rather than relying exclusively on the working classes to do the hard part?

[Lord Sharpe of Epsom (Con)]

The noble Lord raises an interesting point. Of course, the point of the police is that they are there to represent us all. According to the Peelite principles, they have to have our consent to do so, and therefore they should very much look like us.

[Baroness Thornton (Lab)]

My Lords, on these Benches too our thoughts are with Sarah Everard’s family at this time. The recommendations that Lady Elish Angiolini makes about vetting are what an ordinary recruitment agency would do as a matter of course: face-to-face interviews and home visits. Anybody in your Lordships’ House who has adopted a cat or dog will know that you have a home visit to make sure you are suitable as a potential adopter—this is basic stuff. They need to find out about the suitability and psychological suitability, taking notice of PNDs and revetting those on transfer from another force or military, or any government location. Taking it on trust that someone has been vetted by these agencies and therefore is okay surely does not work, so why does the Home Office not have a national vetting programme that is compulsory and that all police forces have to follow?

[Lord Sharpe of Epsom (Con)]

The noble Baroness raises some good points, and she is quite right about some of the recommendations made by Lady Elish. The Government of course recognise that there have been significant and justifiable concerns regarding police vetting, so over the past year we have worked to sort that out. As noble Lords will be aware, in early 2023 we asked the College of Policing to update the statutory code of practice for vetting, which was published in July 2023. It makes clear the expectation that chief officers will ensure that vetting standards are maintained within their forces. The vetting code is supported by the authorised professional practice guidance for vetting, which has recently been revised. There is much more to do on this—no one is denying that. I take the noble Baroness’s point seriously but, as I say, we will soon respond in full to the report and the recommendations.

[Baroness Doocey (LD)]

My Lords, everyone is appalled by this dreadful crime and our thoughts are with Sarah Everard’s family. Will the Government commit to ensuring that female police officers and police staff have the same rights as the public to make a complaint of domestic abuse against their own police force? At the moment their only option is to make a criminal complaint, which most of them are not happy to do. That is definitely not helping recruitment or retention of females in the police force.

[Lord Sharpe of Epsom (Con)]

My Lords, we have already referred to the culture that needs to change, and that is part of the overall cultural change that is required. I am not particularly familiar with how that sort of report would need to be made. I will look into that and come back to the noble Baroness.

[Baroness Deech (CB)]

My Lords, does the Minister agree that the current situation represents a terrible collapse of trust throughout society? There was a time when we could all have confidence in politicians, civil servants, police and everything. Now that trust in the police has gone, that is deeply damaging to the relationships that we have with each other and with the organs of society, and to the safety with which women and men can walk around.

[Lord Sharpe of Epsom (Con)]

I agree with the noble Baroness up to a point. As I said in my earlier answer, that trust has to be rebuilt by strong leadership. In the case of the Metropolitan Police, Sir Mark Rowley has demonstrated his capacity to give the leadership that is required. He needs to be allowed time for that to happen, but he has been in post for a while so I am hopeful that results will be delivered soon.

[Baroness Hughes of Stretford (Lab)]

My Lords, in addition to the 16 recommendations pointing to specific system and individual failings that explain what happened in this very tragic case, Lady Angiolini identifies two factors. One of them, mentioned by the right reverend Prelate, is the culture in the police that has persistently not changed. The second is the failure of senior police leadership to deal with those issues and challenge that culture. What women in particular, the public in general and the thousands of decent men and women in the police service want to see is the Government taking responsibility for the changes that are required—not saying that this is the province of chief constables or whoever but showing responsibility and leading the change that is necessary.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

We do. Obviously we have to maintain the operational independence of the police—I do not think there is any question or dispute about that—so leadership of the police has to remain localised to that extent. However, noble Lords will be aware that we have invested in the College of Policing’s National Centre for Police Leadership, which has already set out standards at every level. There is no dispute that the leadership of the police needs to up its game.

[Lord Paddick (Non-Afl)]

My Lords, I declare my interests as set out in the register. What plans does the Home Office have to take some responsibility here and mandate the psychological assessment of potential police recruits, looking particularly for any propensity to inappropriately exert power over others?

[Lord Sharpe of Epsom (Con)]

My Lords, as I understand it, part of the online process for recruitment involves an element of psychometric testing. I do not know precisely what that testing involves, but I will find out and come back. The online assessment process is very complicated—otherwise, I would give more detail.

[Lord Watson of Wyre Forest (Lab)]

My Lords, in 2018 the Government shelved the second part of the Leveson inquiry—which had wisely been initiated by the former Prime Minister, the noble Lord, Lord Cameron —which was to examine the criminal nexus between rogue police officers and journalists. Since then, we have had the Henriques report, the Casey review and now the Angiolini review. How confident is the Minister today that there are not criminal police officers who would have been caught by the second part of that inquiry, who were inappropriately recruited by the police and who are still in office?

[Lord Sharpe of Epsom (Con)]

I cannot comment on the inquiry itself. Unfortunately, I cannot be as confident as I would like to be that there are no police officers out there who remain to be caught. Unfortunately, these incidents keep coming to light. Sir Mark Rowley warned us that there were more still to come to light, so I expect to hear more.

[Lord Carter of Haslemere (CB)]

My Lords, the excellent recommendation 7 of the Angiolini report was that every police recruitment process should have a holistic in-person interview looking at the motivations of the person concerned for joining the police and the extent of their dedication to serving the public. I have a close family member of the fairer sex who has just successfully been through the appraisal system but did not have such an in-person interview matching that description. Will the Minister look closely at recommendation 7 to see how quickly it can be implemented?

[Lord Sharpe of Epsom (Con)]

I have to say that she should have been interviewed face to face. The information I have is that all 43 forces in England and Wales are conducting those face-to-face interviews. Perhaps the noble Lord would like to share the details, and I will investigate further.

Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024

Lord Sharpe of Epsom Excerpts

Tuesday 5th March 2024 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024.

Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, this instrument, which was laid before the House on 31 January 2024, would amend paragraph 4 of Schedule 2 to the Data Protection Act 2018, more commonly known as the immigration exemption. The Government are amending these provisions following the Court of Appeal judgment on 11 December 2023, which found the immigration exemption incompatible with provisions in the UK GDPR. The court suspended the effect of the judgment until 11 March 2024 to allow the Government time to make the necessary amendments.

I will briefly outline what the immigration exemption does and the changes being made by these regulations. Parliament included the immigration exemption in the Data Protection Act 2018. It provides a legal basis to derogate from certain data subject rights where their exercise is likely to prejudice effective immigration control. For example, a data subject has the right to request and receive details of what personal data is held about them and how it is being processed. Under the provisions of the immigration exemption, the Government may limit the information provided in response to that request if, for example, the provision of that information would tip off the data subject that they were about to be subject to immigration enforcement. The immigration exemption is therefore an important provision in the DPA 2018 that allows the Government to protect the functioning of the immigration system. This was noted specifically by the Court of Appeal in its judgment.

The Court of Appeal’s judgment noted two technical deficiencies in the current exemption. First, the safeguards to be applied to the immigration exemption needed to be in the legislation itself; this is being amended by the regulations’ new paragraph 4A, which inserts the safe- guards on the use of the immigration exemption previously contained in the immigration exemption policy document into the legislation.

The court also determined that the risks to rights and freedoms of individuals were not sufficiently set out in the legislation. This is being remedied by new paragraph 4A(3), which specifically sets out the rights and vulnerabilities that should be taken into account when exercising the exemption. By including these explicitly in the legislation, we are providing increased clarity on the safeguards that are already applied when exercising the provisions of the exemption.

The Government are also choosing explicitly to include provisions as to the balancing exercise that must be undertaken when determining whether the exercise of data rights is likely to prejudice effective immigration control and, if it is necessary and proportionate, to restrict such rights as a result. The draft regulations were subject to consultation with the parties to the judicial review proceedings as well as the Information Commissioner’s Office. The ICO issued a public response to the consultation confirming that it was content with the regulations.

The Government have acted to meet the requirements of the Court of Appeal’s judgment while continuing to ensure that there are necessary safeguards in the legislation to protect effective immigration control. I commend the regulations to the Committee.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for that explanation. I have to say that my recollection is that the issue is much wider than the exemption and ensuring that there is no tip-off to somebody who is about to be visited by immigration enforcement. Let me give an example that was borne out after the Act was passed: solicitors acting for data subjects were unable, as we had anticipated, to find out what the Home Office thought it knew—I put it that way deliberately —about their clients.

I have some general points to make; I will do so fairly quickly. It would be optimistic to think that the Home Office had taken from this saga that objections and criticisms—in the form of amendments, obviously—can be helpful because we could have avoided a lot of effort in rectification. My noble friend Lord Clement-Jones will go into some of the history; I must admit, I do not recall much detail except for being teased frequently by the noble Baroness, Lady Williams, when she was the Home Office Minister, because I brought up our objection to the immigration exemption so often.

I feel strongly that it should not have to be for non-governmental organisations that are no doubt strapped for cash to do so much in order to get things right. I appreciate that that is part of our democracy; I do not object at all to the fact that they can do so, of course, but they should not have to. An application, an appeal, another judicial review, another appeal—at what cost to those organisations and the taxpayer! I emphasise that there is an exclamation mark, not a question mark, at the end of that sentence.

This saga is one of those episodes that vindicates the role of the courts, often in language that I, for one, relish. We have spent a lot of time in the Chamber recently discussing the role of the courts in our constitution; to give one example of the language, I really liked the understated use of

“over-broad derogations from fundamental rights”.

As the Minister said, the litigants were consulted before the publication of the SI. The Secondary Legislation Scrutiny Committee reports that it made three points, of which one, on oversight, was rejected by the Home Office and one was regarded by the Home Office as not necessary. Can the Minister tell the Committee what these were and why they were not pursued?

On the detail of the instrument, I note that it will be a matter for the Secretary of State to balance the risks to the individual and the risks to the state. I happen to think that it is in the public interest to apply exemptions with a very light touch, but of course it is no secret that the Liberal Democrats have problems with the Home Office’s immigration policy, and I fear that the reputational ship is well on its way. Clearly, there is an imbalance of power. That is inevitable, but it is not easy for the individual data subject to exercise his rights, and we should be aware of that.

Can the Minister also tell us what the Home Office will do to ensure that there will be transparency of decisions so that it can appropriately be held to account? Mechanisms must be written into the procedures. New paragraph 4B of Schedule 2 provides for a record of decisions and reasons. How will that be published and what will happen to it?

Will the Minister also comment on the capacity of immigration enforcement—and whoever else needs to—to look at prospective decisions on a case-by-case basis for each disapplication? I recognise that that will not necessarily be a straightforward and easy exercise, but it certainly requires a great deal more than, “It’s okay; it’s immigration, so we can just rely on the exemption”. Case-by-case decision-making is very important.

Finally, I note that the Explanatory Memorandum tells us that there is no full impact assessment because the instrument

“does not substantively alter the safeguards and considerations for applying the Immigration Exemption”.

I have to say that I thought that was the point.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords for their contributions. I shall start with justification and the public interest, which is obviously at the core of this. Parliament included the immigration exemption as part of the Data Protection Act 2018, as has been noted, for the legitimate purpose of effective immigration control. The Court of Appeal declared in its judgment,

“that there can be no dispute that the Immigration Exemption has a legitimate aim and indeed seeks to advance important public interests.”

We agree with the court: the immigration exemption is vital to prevent the release of information which would otherwise prejudice effective immigration control. I particularly welcome its endorsement by the noble Lord, Lord Coaker.

I want to be clear with noble Lords what those important public interests are. Through targeted use of the immigration exemption, we are able to maintain our capability at the border to prevent criminals and those who seek to cause us harm threatening our country as well as to support other agencies and international partners. We are able to frustrate and prevent sham marriages and protect the integrity of ongoing immigration removal and enforcement action and forgery investigations. The immigration exemption is also used to protect people being forced into a marriage and to prevent individuals absconding when there is a planned immigration visit. The central aims are to protect our citizens, ensure the integrity of the border and prevent abuses of the immigration system.

The noble Lord, Lord Coaker, asked about the balancing test. I will come on to the use of the exemption in practice, but it is always clear that the balancing test has to be carried out, and will now be explicitly in the Act. In practice, I can reassure noble Lords that the exemption is employed at around 70% of subject access requests relating to immigration and the Border Force. The amount of data that is restricted by the use of the exemption is, in the vast majority of cases, very little. It is not simply the case that where one piece of information is found to be prejudicial to immigration control, the Home Office does not respond to a request. The piece of information may be redacted as a result, but otherwise a full response will be given. It must be both necessary and proportionate to use the exemption, and this must be balanced against the risk to an individual’s rights. These existing standards will now be set out explicitly in the legislation.

I acknowledge that there was a difference of opinion in the House over whether the previous regulations amending the immigration exemption in 2022 met the requirements of Article 23 of the UK GDPR. The courts have agreed with the Government on a wide range of issues in the hearing. They declared that in two areas in particular the amended exemption did not, and the Government respect that ruling. We are confident that these regulations meet the requirements of the judgment in full, and we are supported by the ICO in that opinion.

The noble Baroness, Lady Hamwee, asked whether we consulted the claimants. They were consulted as part of the development of the provisions, and they suggested some additions to the provisions. We accepted suggestions to provide detail on applicable storage periods in the Explanatory Memorandum. We did not accept a suggestion to alter the existing model of ICO oversight of the exemption. The existing model of ICO oversight of the Home Office is robust, and data subjects are able to challenge use of the exemption. I welcome the noble Lord, Lord Clement-Jones, acknowledging the ICO’s part in this.

We also rejected the suggestion to specify in the legislation the wording that must be provided to data subjects when informing them that the provisions of the exemption have been applied. The provisions of the exemption are already accessible to data subjects and adding that detail to primary legislation would be unhelpful.

As regards how the ICO assesses the Government’s use of the immigration exemption, it already assesses the Home Office as part of its statutory role as regulator. Those assessments are published as data protection audit reports, setting out the findings and any recommendations. Should a data subject disagree with the decision to apply the immigration exemption in their case, the usual redress mechanisms to contact the ICO are available.

The noble Lord, Lord Coaker, asked about the application of these rules to children. The immigration exemption applies to all immigration data, but there are special considerations in relation to minors, which are set out in the ICO’s guidance.

The subject of an impact assessment also came up, which relates to oversight and transparency more generally. It is important that these regulations retain the presumption that a data subject should be informed that the immigration exemption has been used—for example, to redact information provided to them in response to a subject access request. That allows the data subject to challenge that decision, should they believe that the application of the exemption is not justified. The ICO has appropriate powers to investigate whether the immigration exemption has been applied appropriately in a specific case. This is in addition to its overall assessment of the Home Office’s data protection practices, which include the use of the immigration exemption more broadly.

An impact assessment was carried out as part of the inclusion of the provision for the immigration exemption in the Data Protection Act 2018. A further supplementary impact assessment was conducted as part of the amendment to the exemption by the SI in 2022. This is noted in the Explanatory Memorandum. Given that there is no substantive change to the safeguards and scope of the exemption, we have not completed a new IA for this instrument.

[Lord Clement-Jones (LD)]

I am sorry; the Minister seems to be moving on from the impact issue. Clearly there was a period when the old regulation, which is now being superseded, was in operation and individuals were impacted. In a sense, an inappropriate exemption was used. What data does the Minister have about those individuals and the impact on them? What redress do they have? The Minister skated over the ICO’s redress mechanism. Is there no direct mechanism to the Home Office?

[Lord Sharpe of Epsom (Con)]

I did not skate over it at all; I referred to it explicitly and am happy to do so again, if it would help. I do not know if there is any specific redress to the Home Office. I would imagine not, given that it is explicit that data subjects should go via the ICO. If I am wrong on that, I will clarify.

I have no particular data on the subjects who may have been covered by this before the court’s decision, so I will have to find out, come back and write to the noble Lord if there is anything useful to add.

The Home Office already has relevant guidance and training in place for those exercising the immigration exemption provisions, but we are undertaking a review of those materials to ensure that they align with these regulations. That will be completed in time for the 11 March deadline to amend the current exemption. The instrument is making existing safeguards explicit in the legislation, which are already captured in the existing training and guidance, so we do not expect substantive changes to be needed.

The costs of the court case are not yet settled, but I am happy to commit to write once they have been.

There are a couple more bits to say. How often is the exemption used? The honest answer is not very often. I think I referred to this earlier, so it is probably redundant to say it again but, for the record, in the year ending October 2023, the immigration exemption was applied in around 70% of subject access requests received in relation to immigration citizenship and the Border Force. Of those, the vast majority had only a small amount of data redacted under the use of the exemption. So I suppose the answer to the noble Lord’s question is that it will have a very minimal impact on people, but I commit to clarify that.

Finally, the noble Lord, Lord Clement-Jones, asked about the relationship between the DPA and retained EU law. The official answer is that the focus of this SI is the immigration exemption and that discussions of the rules and the implications for the DPA 2018 are probably best debated as part of the DPDI Bill, which will, I believe, come to the House on 20 March. The unofficial answer is that I cannot comment on the noble Lord’s disposition because I did not really understand it and I do not have much knowledge of this subject. However, I note that we have left the EU: the people voted. Our rules can now be amended to our own circumstances, and of course, that applies across the entire legal suite. It was a pretty clear vote by the people of this country; I know that that does not suit the Liberal Democrats.

In closing, I hope that I have satisfactorily answered the points that were made and that noble Lords understand the necessity—

[Baroness Hamwee (LD)]

Before the Minister ends, can I go back to the record the Home Secretary is to keep under the schedule’s new paragraph 4B? It provides that, when he makes a decision, he must keep a record and the reasons for it. In essence, my question is about whether this will be public to any extent or whether transparency will be confined to the data subject. Also, I do not expect the Minister to go into any detail on this now or to comment, because he gave the figure, but 30% seems very high to me. The Immigration Law Practitioners’ Association has commented in the past—not the immediate past but, then again, I have not asked it—about the difficulty data subjects and, in particular, their legal representatives face because they simply do not know what the Home Office thinks it knows about their clients, which is an important starting point for any legal representation and any claim. I make this point because it really needs to be made.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for making her point. As regards what is required of the Home Secretary, for obvious reasons, it will not be public, although I agree that transparency is important when it comes to culture; we talked about that earlier in the context of the police, where similar rules apply. It will, however, be available to the ICO and subject to the usual transparency rules at the ICO’s request.

As I have already noted, we understand the necessity of these changes in order to ensure compliance with the Court of Appeal’s judgment and to increase clarity around the use of the immigration exemption. With that, I commend the draft regulations to the Committee.

Motion agreed.

Investigatory Powers Act 2016 (Remedial) Order 2023

Lord Sharpe of Epsom Excerpts

Tuesday 5th March 2024 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Investigatory Powers Act 2016 (Remedial) Order 2023.

Relevant document: 1st Report from the Joint Committee on Human Rights

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

My Lords, this order was first laid before Parliament for consideration on 20 March 2023. It was laid again on 18 October 2023, and sat for 60 days. It was debated in the other place on 23 January 2024. As noble Lords will be aware, it is a top priority for the Government to maintain our national security and keep the public safe. The Investigatory Powers Act 2016 provides robust privacy safeguards in relation to investigatory powers.

The United Kingdom’s investigatory powers regime is world-leading and provides the international standard on transparency, privacy, redress and oversight to accompany the exercise of these critical powers. This House recently considered the Investigatory Powers (Amendment) Bill, on which noble Lords provided expert scrutiny. I am hopeful that today’s debate will be approached in the same spirit.

This instrument will make necessary and important amendments to the IPA following the May 2021 judgment from the Grand Chamber of the European Court of Human Rights in the case of Big Brother Watch and others v the United Kingdom, which I will refer to as BBW. The ruling from the Grand Chamber related to the United Kingdom’s bulk interception regime under the legislation which preceded the IPA—the Regulation of Investigatory Powers Act 2000. The Grand Chamber found that certain aspects of that regime were not compliant with Article 8 of the European Convention on Human Rights, on respect for private and family life, and Article 10, on freedom of expression. While most of the incompatibilities identified by the Grand Chamber were addressed through the introduction of the IPA, there was one outstanding issue which requires an amendment to the IPA. This relates to journalistic safeguards, which I will come to later.

I will first briefly explain how the bulk interception regime operates, so that it is clear how these additional safeguards will be applied. The main purpose of a bulk interception warrant is to acquire overseas-related communications. That material is then retained for the minimum amount of time necessary for the authorised purposes. Criteria are used to search through that material to find material which is useful in support of operational purposes. Useful material is then retained for the minimum amount of time necessary for the authorised purposes.

Section 154 of the IPA covers the journalistic safeguards for bulk interception. Presently, it requires only that the Investigatory Powers Commissioner be informed if material thought to contain confidential journalistic material or sources of journalistic material is retained, following examination, for a purpose other than its destruction. There are additional safeguards in the interception code of practice. The code requires that the relevant intelligence agency seek the agreement of a senior official within a warrant-granting department before the agency may select material for examination, in order to identify or confirm a source of journalistic information.

The purpose of this remedial order is to amend the IPA to strengthen the existing journalistic safeguards for bulk interception under Section 154, which is not possible through the delegated powers provided for within the Act. It does this by requiring that approval from the Investigatory Powers Commissioner is obtained before any criteria are used where the purpose is to select material for examination that is confidential journalistic material or a source of journalistic material, or where it would be highly likely to do so. The retention of confidential journalistic material or sources of journalistic material must also be authorised by the Investigatory Powers Commissioner. There is also an urgency provision, which I will come on to later. It is necessary that the Government introduce this reform to ensure that our intelligence agencies can maintain their ability to carry out bulk interception in line with the convention and the Human Rights Act 1998.

Bulk interception is an important operational tool which is used by intelligence agencies to identify threats to the national security of the United Kingdom—it was recognised by the Grand Chamber as such—as well as in tackling serious and organised crime and maintaining the United Kingdom’s economic well-being. The Investigatory Powers Commissioner already provides oversight of the acquisition, examination and retention of confidential journalistic material and sources of journalistic material obtained under bulk interception. Legislative change is needed so that these safeguards are expressly set out within the legislation. Failure to amend the IPA would mean that the UK’s bulk interception regime would continue to be in breach of Article 10 of the convention.

This remedial order introduces amendments to Section 154, the creation of a new Section 154A and a minor consequential amendment to Section 229(8). The amendment to Section 154 will introduce enhanced safeguards relating to the criteria used to select material for examination that will identify confidential journalistic material or identify or confirm sources of journalistic material derived from material acquired through bulk interception. The permission of the Investigatory Powers Commissioner will be required before such material can be purposefully selected for examination or knowingly retained for a purpose other than destruction.

Permission from the commissioner is also required before such material may be retained. The commissioner will make that decision on the basis of whether it is in the public interest to retain the material. The commissioner may impose conditions on the retention of the material. The creation of the new Section 154A introduces an urgency process for dealing with requests for authorisations out of hours. These authorisations will be subject to subsequent judicial approval and any search activity must cease if approval is refused, so urgent applications will still be subject to rigorous independent scrutiny. The judicial commissioner will make their decision on the basis of whether it is in the public interest to approve the use of the search criteria.

The amendment to Section 229(8) is a consequential amendment which includes reference to the new functions of the Investigatory Powers Commissioner in Sections 154 and 154A so that they are treated consistently within the IPA. Sections 229(6) and (7) require judicial commissioners to not act in a way that is contrary to the public interest, national security, the prevention or detection of serious crime or the economic well-being of the UK. Section 229(8) then disapplies that requirement when the judicial commissioner is exercising various functions such as considering whether to approve the authorisation of a bulk interception warrant. Subsection (8) is amended by this instrument to include decisions by the judicial commissioner under new Sections 154 and 154A. This is consistent with similar judicial commissioner functions in other parts of the IPA and ensures that the judicial commissioners can exercise their functions properly.

This remedial Order will ensure that the United Kingdom fulfils its obligations under Article 10 of the convention by making the necessary changes to the bulk interception regime under the IPA in order to be compliant with the findings of the Grand Chamber in BBW. These changes will further strengthen the world-leading safeguards within the IPA, which is a crucial tool in the ongoing effort to protect the United Kingdom and its citizens. I therefore commend the draft Order to the Committee.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his helpful introduction.

This SI concerns the selection for examination and retention of confidential journalistic material which has been collected under a bulk interception warrant. Big Brother Watch brought a challenge to the Regulation of Investigatory Powers Act 2000, the predecessor of IPA, and the courts found several incompatibilities with the ECHR. Most of those incompatibilities were resolved by the introduction of the IPA in 2016. One issue remained—where an intelligence agency seeks to select confidential journalistic material for examination obtained under a bulk interception warrant or identify sources of journalistic material, the selection criteria used should be subject to prior independent authorisation. Where they are found during the examination of bulk data, their retention must be independently authorised.

In its report on the draft version of this instrument, the JCHR made three recommendations. Two have been accepted by the Government and integrated in this SI. However, the Government have not fully accepted the third recommendation, which was that security agencies engage with the Investigatory Powers Commissioner so that they can review journalistic material which had been retained before this SI is implemented. The Government responded that notification of the IPC is already required for an application for the retention of confidential journalistic material and that a judicial commissioner also must consider the application. Additionally, the IPC audits statements submitted for retention applications. However, if the Government accept that there is a need to change the law, surely they accept that there is a need to create an additional review in cases that will not be captured by the new regulations?

I have some questions which may be helpful for those who read these proceedings. Can the Minister explain why these changes have not been brought about as part of the Investigatory Powers (Amendment) Bill, given that it is still going through Parliament? New Sections 195 and 195A were inserted into the Investigatory Powers Act on Report in this House. They create additional safeguards for journalistic material for bulk equipment interference. Why is this being introduced separately? Can the Government provide more details on why they have not fully accepted the third recommendation of the JCHR?

In Article 2 of the SI before us, the Government talk about

“Additional safeguards for confidential journalistic material etc”,


and state that the two bodies that can investigate or seek approval are the Investigatory Powers Commissioner or a senior official. The Minister knows that I will ask who the senior official is. How senior does the senior official have to be? In what circumstances would you go not to the IPC for approval but to the senior official? I know the Minister tried—I expect that he thought that people would ask what “urgent” means—but can he say a little more about urgency, even though he included some of that in his remarks?

Does the senior official have to report every decision to the IPC, as outlined in the substituted Section 154A? Does the senior official have to inform the IPC within days or weeks of any decision that they have made? What happens if the IPC does not approve of the decision made by the senior official, given that, presumably, in the interim the Security Service will have acted as though it had permission? I hope that is clear: presumably a senior official can give permission, then for a few days the Security Service can operate as though it had permission, then the IPC turns around and says, “I don’t think that was the right decision and you do not have permission”. How does it function in the interim, if that is clear? You have a gap between the senior official giving permission and the IPC turning it down, which may be a few days. Does the Minister have anything to say about that?

Does the IPC or the senior official have to record their reasons for believing that the public interest in obtaining the information outweighs the public interest in maintaining confidentiality? In other words, do they have to be transparent about their reasons for coming to their conclusion? Similarly, under new subsections (6), (7) and (8), does the IPC or the senior official have to record the reason why the public interest in retaining the information outweighs the public interest in destroying the information that has been obtained? Again, it is the test about public interest and the conflict between confidentiality and openness and transparency. I wonder whether the Minister has anything to say about that.

However, I understand the need for the SI. I think some clarity around some of those questions would be helpful for those who read our deliberations but, with that, we support the SI.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for his participation and support in the debate today. As I set out earlier, the changes that we are seeking to make to the Investigatory Powers Act will bring the bulk interception regime in line with the requirements of the European Court of Human Right’s Grand Chamber judgment in the case of Big Brother Watch. As I set out, it will ensure that the UK meets its obligations under Article 10 of the convention concerning confidential journalistic material and sources of journalistic material. Prior independent authorisation will be required where the purpose of the use of criteria to select material for examination is to identify confidential journalistic material or to identify or confirm a source of journalistic material. Prior independent authorisation will also be required for the retention of such material for purposes other than its destruction.

The noble Lord asked why this amendment was not taken forward as part of the Investigatory Powers (Amendment) Bill. That Bill was announced in the King’s Speech on 8 November 2023 and was introduced into the House of Lords on the same day. The Home Office was not able to pre-empt the contents of the King’s Speech and there was no guarantee that the Bill would be brought forward in the fourth Session. The judgment in the BBW case was handed down in May 2021 and, as a considerable time has passed and with no guarantee of a suitable legislative vehicle, the Home Office felt it was necessary to remedy the incompatibility as soon as possible. A remedial order was therefore the most appropriate course of action; essentially, it was timing.

--- Later in debate ---

[Lord Coaker (Lab)]

I know it sounds like dancing on the head of a pin, but what “senior” means is quite important, so I ask the Minister to clarify that.

[Lord Sharpe of Epsom (Con)]

I take the point. I absolutely will clarify it, if possible.

I would love to read the Committee my last answer, but I cannot read the writing, so I am sorry, and I apologise to whoever wrote it. Whatever it says, I will write to the noble Lord—or, rather, type—when I have deciphered it. I am very grateful for his contribution in this debate. As I set out, the changes we are seeking to make will ensure that the UK’s bulk interception regime meets its obligations under Article 10 of the convention and strengthens existing safeguards for journalists. I therefore commend this order to the Committee.

Motion agreed.

Ukrainians: Visas and Further Support

Lord Sharpe of Epsom Excerpts

Monday 4th March 2024 Lords Chamber

[Lord Kirkhope of Harrogate]

To ask His Majesty’s Government what plans they have to extend visas for Ukrainians which are due to expire after 3 years, and what further support they intend to provide to Ukrainians in the United Kingdom.

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

My Lords, to provide future certainty, on 18 February the Government announced that existing Ukraine scheme visa holders will be able to apply for permission to remain in the UK for an additional 18 months under a new Ukraine permission extension scheme, which is set to open in early 2025 before the first Ukraine scheme visas start to expire in March 2025.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I had the honour of being a Minister involved in the Bosnian resettlement scheme in 1996. I am very grateful to my noble friend for that Answer and commend the Government on their actions to offer sanctuary to so many Ukrainians. I also pay tribute to the many families and organisations under the Homes for Ukraine scheme who have hosted and helped those displaced people, including colleagues in this House and Members of the other place. However, the visas granted envisaged a shorter conflict than the one we unfortunately have, so will my noble friend assure the House that everything will be done to make necessary renewals as straightforward and stress-free as possible for those currently in receipt of our hospitality?

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for those remarks and join him in praising the generosity of the British public over the three bespoke Ukraine schemes. The UK has welcomed or offered sanctuary to more than 280,000 Ukrainians and their families fleeing the war in Ukraine. Together with our partners and allies, the Government stand in solidarity with Ukraine and will show that those who need our help are still warmly welcomed. It is right that we continue to adapt and develop the visa routes to ensure that they keep pace with the rapidly shifting situation in Ukraine, remaining as efficient and sustainable as possible while providing stability for those welcomed to the UK who need our sanctuary. We will ensure that this is done as efficiently as possible.

[Lord Addington (LD)]

My Lords, will the Minister assure us that all those being helped by this scheme will be assisted until it is safe to go home and that, whatever the rollout may be, a further scheme will be found? That is probably the assurance they need, and this country should give it.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The noble Lord raises a very good point. Of course, it is not for this Government to judge the certainty of conflict situations, which are very difficult to manage. However, I have no doubt that the Government will do whatever is necessary to maintain the current sanctuary that this country proudly offers.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too pay tribute to all the families who have taken Ukrainians into their homes. Under the new changes to the Ukraine family scheme, unaccompanied children will no longer be able to join their parents in Britain automatically. Does the Minister think that restricting family rights at a time when Ukrainian troops are under heavy fire in Donetsk sends the right message to the people of Ukraine about our willingness to stand by them?

[Lord Sharpe of Epsom (Con)]

I rather regret the tone of that question if I am honest. Ultimately, of course we would like to see families reunited in a safe Ukraine. The UK’s Ukraine schemes are not family reunification pathways. They are designed to provide temporary sanctuary in the UK for Ukrainians fleeing war. Ukrainian nationals who would have qualified under the Ukraine family scheme will still be able to apply under Homes for Ukraine. The Home Secretary will obviously consider any compelling and compassionate grounds that are presented on a case-by-case basis; for example, where families will be separated from young children. Plenty of routes still exist for family reunification in the UK, even though, as I said earlier, they are not reunification pathways.

[Lord Stirrup (CB)]

My Lords, I am aware of a Ukrainian lady who is harboured here in the United Kingdom, whose husband remains in Ukraine, and who has sadly had a return of a cancer from which she was previously in remission. She is not just grateful for but indeed overwhelmed by the help and treatment that she has received here in the UK. Does the Minister agree that while there is absolutely no room for complacency, we should be very proud of what this country has done in supporting the Ukrainians?

[Lord Sharpe of Epsom (Con)]

I completely agree with the noble and gallant Lord. Although I obviously cannot comment on individual cases, I wish the lady in question the very best, and I hope that she is reunified with her husband in due course.