Visas: European Union Students

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 4th November 2019 Lords Chamber

[Baroness Williams of Trafford]

I am very happy to accept the congratulations from my noble friend. I understand that the extension will be in place next year.

[Baroness Hamwee (LD)]

My Lords, I looked on GOV.UK to see what the answer might be to my noble friend’s Question. It tells us that after three years, students, among others, will have to apply under the new Australian points-based system. There are a lot of questions that one might ask about this. One is whether the Government think that such a new system can be presented as now definite and whether it is intended to be introduced by ministerial fiat, bypassing Parliament.

[Baroness Williams of Trafford]

I do not think there is much that can bypass Parliament these days. Perhaps I might apologise for saying to my noble friend Lady Neville-Rolfe that the scheme is to be implemented next year; it will actually be in 2021, the year after next.

Modern Slavery (Victim Support) Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 7th October 2019 Lords Chamber

[Baroness Williams of Trafford]

I thank my noble friend for that question. He refers to a period of 12 months, but the two initial phases—when someone has received positive reasonable grounds, and conclusive grounds—each give a minimum of 45 days’ support. Together, that is a minimum of 90 days. Someone may well receive a longer period of support.

[Baroness Hamwee (LD)]

My Lords, the recent independent review of the Modern Slavery Act discussed the need to develop our domestic infrastructure to protect victims. The Independent Anti-slavery Commissioner has said that we should,

“ensure that all child victims of slavery are fully supported towards safety”.

The Minister mentioned independent child trafficking guardians. Is the piloting and evaluation of the scheme going so slowly as to jeopardise the full rollout recommended by the independent review?

[Baroness Williams of Trafford]

Not that I know of, but we should note that when something is rolled out, it is important that it be done properly, in the sense that it is ultimately effective. To me, piloting and rolling out further seems to be the best way of doing this. I do not think it is too slow, but I do think we need to get it right.

Immigration: Children

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 23rd July 2019 Lords Chamber

[Baroness Williams of Trafford]

I am not in a position to make the figures publicly available. However, where children are involved, families may qualify for support from local authorities under Section 17 of the Children Act. It is very difficult to substantiate some of the claims made in the report without knowing the cases. I do not decry what the right reverend Prelate says: we have an absolute duty to children in our care and our communities.

[Baroness Hamwee (LD)]

My Lords, following the right reverend Prelate’s question, does the Minister agree that it is important to know how many children are affected? We cannot take policy decisions without underlying information. Does she recognise that there are probably tens of thousands of British-born children —or children eligible to apply for British citizenship—who do not have access to public funds? Is this the right way to treat fellow Britons? How does it affect integration and cohesion?

[Baroness Williams of Trafford]

While I cannot give out the figures, I can say that 54 local authorities can access a database developed by local government with funding from the Home Office. It is called NRPF Connect and allows for online checks and information sharing, enabling the Home Office to identify local authority-supported cases and prioritise them for conclusion. There is communication between the Home Office and local authorities.

European Union Settlement Scheme

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 16th July 2019 Lords Chamber

[Baroness Williams of Trafford]

I think the noble Lord is referring to automated decision-making. If the report is the same one that I am thinking of, it is wrong: there is no automated decision-making in the settlement scheme. Each application is checked by a caseworker, which I hope will give the noble Lord comfort. We allow applicants to choose, during the application process, whether they would like the evidence requirement for their continuous residence in the UK to be supported by government data checks. Those checks are optional and triggered only when a person enters their national insurance number on the application. The applicant may supply evidence in other forms should they wish to do so.

[Baroness Hamwee (LD)]

My Lords, I am sure that the Minister will agree that transparency is important and particularly difficult to achieve in a scheme that is largely, if not completely, automated and uses algorithms. What information will the Home Office publish about its evaluation of the workings of the scheme? I include in that the work being done by the organisations receiving funding to advise vulnerable applicants, especially as—the Minister will correct me if I am wrong about this but it is important—I believe that their contracts include a gagging clause.

[Baroness Williams of Trafford]

I cannot comment on the last point made by the noble Baroness and I will have to write to her on whether that is the case. She will of course remember the beta testing scheme that was in place before the whole thing went live; we will review how that process went. Part and parcel of that review will be the total number of successful applications made, as well as where things possibly went wrong.

Asylum Seekers

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 10th June 2019 Lords Chamber

[Baroness Williams of Trafford]

The Government collate data of asylum claims based on sexual orientation. I understand that almost 6,000 asylum applications lodged between 2015 and 2017 stated sexual orientation as the basis of their claim, although my noble friend will be aware that sexual orientation might not be the first basis for a claim.

[Baroness Hamwee (LD)]

My Lords, we have seen two very unhappy incidents of homophobia in this country in the last few days—at the theatre in Southampton and on the bus in Camden. Does the Minister agree that denying the dangers facing many asylum seekers, at best, displays a lack of understanding of minorities on the part of the Home Office and, at worst, amounts to real prejudice?

[Baroness Williams of Trafford]

My Lords, the Home Office understands the dangers faced by LGBT people, and our hate crime action plan, launched in 2016, acknowledged them. I know of the two cases that the noble Baroness is talking about, which are very disturbing indeed, so I reject any suggestion that we do not take vulnerabilities, particularly those related to hate crimes meted out on people because of their sexual orientation, very seriously.

Places of Worship: Protective Security Funding

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 7th May 2019 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I, too, thank the Minister for repeating the Statement. She repeated the Home Secretary’s four specific items. I thought that the third, which was,

“consulting religious communities on what more can and should be done to help them”,

might have been the first one in the list. The amounts of money which are mentioned are welcome, but they are very small when one compares them to the cost to the community of an attack—any sort of attack, but particularly a major attack. The aim must be to eliminate religious hatred.

The focus of this Statement—I do not think it pretends to be otherwise—seems to be on relatively low-level physical security. I believe that the maximum grant, if that is the right term, that has been made is £56,000. Will the Minister tell the House the average, more or less, level of grant that has been given recently—it will be 80% of the total cost of the work proposed—and what can be achieved by that sort of money? I do not know how much CCTV costs; that may be the best of the physical arrangements.

I have a couple of questions for the Minister about the application form on the Home Office website. There are questions about the building, asking whether:

“The exterior and interior … is in a good state of repair and look well maintained”,


whether there is “natural surveillance”—I am not sure what that means—and whether it is in a conservation area. What is the relevance of some of these questions? There are questions about security measures, such as whether personal injury or assault has been experienced in the past 12 months and whether the building is,

“visible and identifiable as a place of worship? e.g. Symbolism/description on exterior of building, building dominate town or hidden away etc”.

My reaction on reading that is that we should be loud and proud about faiths which are practised. Again, will the Minister tell the House the purpose of such questions?

Five million pounds is proposed over three years for training. I appreciate that the Community Security Trust is outside this scheme, but I mention it because I was struck by an email circulated to members of my synagogue asking for volunteers to come forward for specific levels of training, and I realised how much these groups depend on volunteers. Is the Home Office satisfied that all communities that need training will be able to access this funding?

Like the noble Lord, Lord Rosser, I want to ask about the Prevent programme, which is mentioned. What progress is there with the review that is to be undertaken? Will the Minister assure the House that it will be independent and that community organisations and civil society, including of course faith organisations and faith communities, will be given every opportunity to contribute evidence?

[Baroness Williams of Trafford]

I thank both noble Lords for their comments. The noble Lord, Lord Rosser, asked what elements of the funding are new or not new. The £1.6 million in the Statement is not new money. It will be released in July. The £5 million funding is also not a new announcement and will be released in this financial year. As the noble Lord may have heard my right honourable friend the Home Secretary say, the Ramadan package is new. A £50,000 pre-Ramadan training package has already started and an additional £7,000 will be available during Ramadan. As he heard me say, Faith Associates was chosen to do that. There will be a training package in place for communities that need it, which will be aligned with the places of worship scheme.

The noble Lord commented that this is not just about buildings. He is absolutely right—. Just securing a building will not create confidence or put the minds of communities at rest. I do not know whether he recalls it, but the reassurance that was provided by the police following the “punish a Muslim” letter was exemplary. Communities up and down the country were very grateful for that, and the police will be doing the same over Ramadan. I mentioned £5 million over three years for security training. We are most grateful for the work of Tell MAMA and the CST. Touching slightly on what the noble Baroness, Lady Hamwee, said, the two work together because a problem for one community often reflects itself in a problem for another community.

The noble Lord also touched upon the online world and how it is so invidious in hooking people into areas of extremism or terrorism. Of course, he will know that the online harms White Paper has now been published, and I look forward to the introduction of the Bill. The noble Lord, Lord Rosser, rightly pointed out that communities are at the heart of all that we do. The Building a Stronger Britain Together projects that we do with civil society groups have proved very beneficial in moving them to promote integration and cohesion within communities.

Both the noble Lord and the noble Baroness, Lady Hamwee, talked about the Prevent review. We committed to do it in 2019 and I am sure that further details of it will come forward. I do not have them at my fingertips now, so I will not pretend to know every single aspect. However, one thing that should not be forgotten in the context of Prevent is that the rise of the far right has seen almost 50% of referrals to the Channel programme being related to far-right concerns. The noble Baroness, Lady Hamwee, said that the consultation should have come first. I am sure that my right honourable friend the Home Secretary did not list the four things in order of importance, but of course consultation with community groups is at the heart of what we do.

The noble Baroness asked about the size of the grants and talked about it being a relatively small fund. However, when you put together the £5 million training package and double the funding for this year, plus the Ramadan funding, it is not an insubstantial amount. I cannot give her the average size of the grant because I do not know it, but I shall try to find out for her in due course.

She also talked about some of the funny things on the application form. As she listed them, I reflected on why you would need to know whether the institution in question was in a conservation area. I surmise that it is because you would need to know what you can stick on the outside of or put around buildings. Certainly, whether a building is secluded or in full sight will influence the risk assessment. Similarly, a building in a poor state of repair is clearly more of a security risk. Basically, it allows an assessment of risk.

The noble Baroness talked about the £5 million-worth of training and asked whether all communities that need training will get it. I really hope that communities that need it will come forward. The consultation will be online very shortly. I know that organisations such as the CST and Tell MAMA are fully engaged when it comes to working with each other, so there will be community involvement and participation. I look forward to the details of the consultation coming online in due course.

Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 12th March 2019 Grand Committee

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

My Lords, the Committee will be aware that the Government are preparing for all scenarios relating to the UK’s withdrawal from the EU, including the scenario in which the UK leaves the EU without a deal at the end of this month. As part of these preparations, the Government are bringing forward a programme of secondary legislation intended to ensure that there is an effectively functioning statute book on exit day. The instrument forms part of that programme of secondary legislation. It addresses deficiencies in our domestic statute book that would arise if we leave the EU without a deal, focusing in particular on deficiencies in security, law enforcement, criminal justice and some security-related regulatory systems.

By way of context, the UK currently participates in a number of EU tools and measures that support security, law enforcement and judicial co-operation in criminal matters—some of which, like the European arrest warrant or Europol, will be familiar. We also participate in a number of security-related EU regulatory regimes relating to firearms, drug precursors and explosive precursors. Should the UK leave the EU without an agreement at the end of the month—the no-deal scenario—the UK’s access to those tools and measures would cease.

At the same time, the UK would cease to be bound by those security-related EU regulatory systems. This decoupling would occur as a result of the UK having withdrawn from the European Union after the Article 50 notification not as a result of the provisions found in this instrument. It is important to be clear that the regulations play no part in bringing about the UK’s withdrawal from the EU; rather, the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect a new situation. The changes we are making in the instrument are the ones we cannot, or should not, avoid in the event of no deal. The regulations do not contain significant policy choices.

Against this backdrop, the regulations will do three main things. First, they will revoke or amend retained, directly applicable EU legislation and domestic legislation in the areas of security, law enforcement, criminal justice and some security-related regulatory systems. This will ensure that the statute book continues to function effectively in a no-deal scenario. It is important to emphasise that where the regulations revoke retained EU law or connected domestic law, this is not expected to have a practical real-world effect because the underlying EU instruments would cease to be available to the UK upon withdrawal from the EU in any event. For example, in a no-deal scenario, our membership of Europol will end on 29 March by virtue of the UK ceasing to be an EU member state rather than as a result of the retained Europol regulation being revoked by this instrument.

Secondly, where necessary, the instrument includes transitional or saving provisions to address live or in-flight cases—that is, provisions confirming how cases live on exit day should be dealt with or how data received before exit day should be treated. This will provide certainty for operational partners, such as the police and prosecutors, who currently operate the EU tools and measures and need to be clear on what activity can continue and on what terms at the point of exit. Thirdly, in the case of extradition, the instrument will ensure that the UK has the correct legal underpinning to operate the no-deal contingency arrangement for extradition—the Council of Europe Convention on Extradition 1957—with EU member states.

For the most part, the regulations make the same sort of changes over and over again in a series of related areas: revoking in whole or in part legislation on our domestic statute book that would be redundant in the event of a no-deal exit; fixing deficiencies, such as making sure that definitions in our domestic law reflect our new status outside the EU; and making sure that there is clarity over what happens to cases and requests that were live or in train at the point of exit.

Overall, the making of this instrument will provide legal and operational certainty for the public sector, including our law enforcement and criminal justice partners across the UK, such as the National Crime Agency, our police and our prosecution services. While it remains the Government’s position that exiting with a deal is in the UK’s best interests, this instrument makes important changes to ensure readiness on exit day in a no-deal scenario.

Having provided an overview of what the instrument does, I should also be clear on what it does not set out to do. For the most part, this instrument is not a vehicle for implementing the Government’s policy response to a no-deal exit. Our contingency arrangements for co-operation with EU partners on security, law enforcement and criminal justice involve making more use of Interpol, Council of Europe conventions and bilateral channels. These existing, alternative channels outside the EU are already in use between the UK and many other non-EU countries. Accordingly, they do not require domestic legislation to set them up, which is why those contingency arrangements are largely outside the scope of what these regulations set out to do. Even the Council of Europe convention on extradition, which this instrument links into our contingency arrangements, is already in place and in day-to-day use by the UK with non-EU countries. The instrument re-categorises EU member states for the purposes of our own domestic law, in the form of the Extradition Act 2003, so that we can administer requests from EU member states under Part 2 of that Act rather than under Part 1, as at present.

Finally, I should make it clear to the Committee that the instrument comes into force on exit day, as defined in the European Union (Withdrawal) Act 2018. Should we enter an implementation period the entry into force of these regulations, along with most other EU exit instruments, will be deferred to the end of that implementation period. I commend the regulations to the Committee and I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have to give the Committee apologies from my noble friend Lord Paddick, who is unwell. I am afraid that your Lordships have me whinging over this instead.

I was a member of the Secondary Legislation Scrutiny Committee for some time and its staff always amazed and impressed me with their ability to grasp detail while not losing a grip of the bigger picture. Reading the committee’s report on this instrument, it seemed to be the verbal equivalent of throwing one’s hands up in despair. It drew it to the special attention of the House,

“on the ground that the explanatory material … provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.

When I got the draft instrument out on Sunday, to look at it in a rather casual way, I thought it was just me but apparently it is not.

The committee also has within its terms of reference reporting to the House when an instrument fails to fulfil its policy objective. It has made it quite clear that it has some difficulty in assessing that. Its report says that it found the impact assessment,

“to be of little practical use”,

and that,

“for the most part the impact is categorised as … ‘there could be some practical impacts arising if legislative deficiencies are not addressed through these Regulations’. No information is given about the frequency with which the provision is currently used, whether an alternative route to the information is available at a different cost, or what effect the loss of this intelligence or information will be. Neither the financial nor the societal cost is quantified”.

The committee went on:

“We … expect an EM to include some contextual explanation, preferably with estimated numbers or an indication of the degree of usage, illustrating how the system will operate differently after the legislative change has happened”.


The Minister may say that she has told us that there really will not be a change, but I think that the committee is commenting on getting from A to B. It continued:

“Without such information we cannot assess the significance of a policy change and, therefore, advise the House accordingly”.


If I caught it correctly, the Minister said that for the most part there is no policy change. She is nodding at that, and I suggest to the Committee that that rather makes my point for me.

Scrutiny is not a rubber-stamping exercise. Analysis is at its heart. We have already heard the term “real-world effects”, and on that point the committee said that statements made by the Government,

“raise concerns that cannot be assessed properly without appropriate information on the current scale of usage and how that might change as a result”.

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[Baroness Williams of Trafford]

That is a very good point, because if Parliament does not understand what the regulations mean then practitioners will be at a distinct disadvantage. I totally take the noble Baroness’s point.

As the noble Lord, Lord Kennedy, said, the Home Affairs Select Committee and the House of Lords’ EU Home Affairs Sub-Committee have been particularly active in publishing reports in March, July and December last year. There was the EU Home Affairs Sub-Committee’s report on a UK-EU security treaty on 16 January, as well as its oral evidence session on security arrangements in the event of no deal on 27 February. I am pleased that both Houses of Parliament are looking at an issue that has been under-debated in both Houses. For me it is one of the most important aspects, as the noble Baroness, Lady Ludford, said, as we leave the European Union.

The noble Baroness, Lady Hamwee, talked about the impact assessment being insufficient because it does not outline the impact of no deal. The impact assessment assesses the impact of legislating, as proposed in the regulations, compared with not doing so in a no-deal scenario. For the purposes of the impact assessment, the no-deal scenario is treated as a given since that is the scenario the regulations prepare for. We are not getting mixed up, but I think we are conflating no deal generally with the regulations.

[Baroness Hamwee]

I understand what the Minister is saying. Is that the explanation for us not being given the cost to the public purse, which, frankly, must be considerable, to which my noble friend Lady Ludford referred?

[Baroness Williams of Trafford]

That is pretty much so, but I will get on to that later. The impacts of no deal as a whole are completely outside the scope of the regulations.

The noble Baroness, Lady Hamwee, said that the regulations are indigestible. That is pretty much what the noble Lord, Lord Kennedy, said too, but we cannot avoid them in the event of no deal, given the importance of this area. As I said in my opening speech, most of the changes being made by the regulations are very similar—indeed, one might say repetitive—in most parts of the instrument.

The noble Baroness, Lady Hamwee, made a very serious point about the Liberal Democrats intending to vote against the regulations. Obviously, it would be deeply regrettable, particularly in this area, to take that course of action. The noble Lord, Lord Kennedy, pointed that out. These regulations will provide legal and operational certainty for operational partners. Clearly, it is vital that they uphold the rule of law and protect the public. We should be doing everything we can to support their work and to manage the transition to a no-deal scenario. I hope that does not happen, but if it does that is exactly what the instrument will do. I must say to the noble Baroness that if the changes in these regulations in the extradition space are not made, it is not clear that new incoming extradition requests from EU member states could be lawfully processed, with potentially serious consequences for our extradition arrangements with EU partners.

The noble Baroness asked how many EU member states need to make legislative changes to operate the Council of Europe’s European Convention on Extradition with the UK. All EU member states operate the European Convention on Extradition with Council of Europe countries that are not EU member states. I will not speak on behalf of other member states as to their particular systems, but we anticipate operating the European Convention on Extradition with all EU member states. I think that answers the question asked by the noble Baroness, Lady Ludford.

The noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Kennedy, talked about extradition. The noble Baroness, Lady Hamwee, asked me about “almost” no policy changes; here there is a tiny tweak which I will now explain. In the case of extradition, the regulations help to support the implementation of the no-deal contingency arrangement. The regulations will ensure that we have the correct legal underpinning, as I have already said, to operate the no-deal contingency arrangement with EU member states. However, the legal underpinning for our contingency arrangements for March 2019—the end of this month—largely exists outside these regulations. To be clear, the convention is already in place, and it is in use by the UK with other countries. These regulations will recategorise EU member states for the purposes of the Extradition Act 2003 so that we can administer requests from them under Part 2 of the Act rather than under Part 1 as at present. That is the tweak. I hope the noble Baroness will agree that it is a small tweak.

The noble Baroness, Lady Ludford, asked how much longer a Council of Europe case will take compared to a European arrest warrant case. We have absolutely accepted that, in the event of no deal and having to revert to Council of Europe conventions, it will take longer and cost more. The noble Baroness also made the point that it will not be as effective in the case of a no deal—she does not want Brexit at all, but that is by the by. The purpose of the regulations is to ensure that the statute book functions correctly and reflects the new situation should a no-deal scenario materialise. She very rightly asked about human rights. As the White Paper and the political declaration make clear, the UK is committed to membership of the ECHR, and we will remain party to it after we have left the EU. I also add that this country has some of the strongest human rights legislation in the whole world, and I remain confident that we will be world leaders in that.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Kennedy, very sensibly asked about data protection. The default position on data protection is that in a no-deal scenario we can continue to process data received from other member states before exit day, subject to compliance with the Data Protection Act 2018. One of the principles in that Act is that there should be compliance with the conditions under which personal data was first accessed, which in this case would imply the conditions—including those found in the measures themselves—under which the UK accessed the data while still a member state. However, to put the legal position beyond doubt and to reduce the risk of legal challenge, the approach taken in relevant areas of the regulations is to save the specific data protection measures. Saving those provisions helps to create legal certainty, including for operational partners.

The noble Baroness, Lady Ludford, also talked about the cost per extradition going up, and asked why that is not in these regulations. We have gone over that ground—this is not about no deal generally, but about putting things on the statue book. We are absolutely not denying that the cost will go up and that the time will be longer. I hope that answers all noble Lords’ points.

Shamima and Jarrah Begum

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 11th March 2019 Lords Chamber

[Baroness Williams of Trafford]

I thank the noble Lord for that question. Of course, the death of any child is an absolute tragedy. In the camps in Syria, two-thirds of all deaths are children under the age of five. The situation in northern Syria is absolutely dire, and I know the noble Lord will agree that any parent who takes a child to that region, despite all the advice to the contrary, puts not only themselves beyond help but their child too.

[Baroness Hamwee (LD)]

I thank the Minister for repeating the explanation of the deprivation of British citizenship. I had understood that this should be used only as a last resort, but it now seems to be used as a first response. The Statement refers to removing British citizenship from those “holding another nationality”. Could the Minister confirm whether that means currently holding another nationality, or—as I believe is the case with Shamima Begum—entitled or possibly entitled to another nationality?

The noble Lord, Lord Kennedy, asked about taking the interests of the child into account in a fairly objective way. With regard to the particular child, we have heard—not specifically from the Statement—that the Home Secretary said that he took the interests of the child into account. Could the Minister tell the House how that was done?

Finally, there is obviously concern about safeguarding individual children. I believe that there is also an obvious concern about the new generation of children now in the region who will grow up to see the UK as an enemy, despite the fact that they have British citizenship. Can the Minister explain how we will prevent that situation getting much worse?

[Baroness Williams of Trafford]

My Lords, we must make no mistake; the noble Baroness talked about making the situation worse, but it is hard to think how it could be any worse. As I said to the noble Lord, Lord Kennedy, two-thirds of the people who die in the camps are children under the age of five.

On people who hold another nationality, my right honourable friend the Home Secretary has been absolutely clear that he will not deprive someone of their citizenship unless they possess the citizenship of another country.

On the interests of the child, the Home Secretary said that he took the decision based on all the facts of the case, which included the interests of the child. It would be very difficult to establish how one could take a child out of Syria, when it would be wrong to send British officials there to remove the child. The noble Baroness talked about safeguarding. Speaking of “safeguarding” in Syria seems to be a contradiction in terms: any parent who takes their child to Syria puts not only themselves beyond help but their child too.

Offensive Weapons Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Report: 2nd sitting (Hansard): House of Lords
Monday 4th March 2019 Lords Chamber

[Baroness Williams of Trafford]

I stick by the point that people will use the list in the Bill to try to get around the law, and therefore guidance is helpful. It is helpful both to the retailers who will be selling items but also to the courts in interpreting the legislation. Of course, the difficulty in this legislation is that knives have myriad uses, which in many ways is why this has been quite a difficult Bill to take through.

[Baroness Hamwee]

My Lords, given the problems with the Bill itself, I make a point so that at least Hansard is accurate on this. The Minister talked about using terminology such as I have used to allow retailers to sell knives online and deliver them to domestic premises—she talked about bread knives and steak knives. This wording would require the product to function only with a blade. That clearly would not apply to a bread knife; if it does, every knife can function only with a blade. I am not suggesting that the precise detail of this amendment be included in the Bill, but this all goes to show that if we resist being specific here, we risk causing more problems, not fewer. If I did not say so before, nothing I have said seeks to undermine in any way what my noble friend Lord Paddick said about his overarching approach, which we should be following.

[Baroness Williams of Trafford]

It comes back to the noble Baroness’s point about consultation. In developing the guidance, we must and will engage with business and organisations such as the BRC. The intention is that it will be developed with them. We could have a circular argument here about whether things should be directly specified in the Bill or how helpful the guidance will be in helping retailers and the criminal justice system, but guidance generally will help the Government keep pace with developments.

Amendment 86 is similar to Amendment 81 and again seeks to require the Secretary of State to issue guidance. We have already debated government Amendment 106, which will enable the Secretary of State, Scottish Ministers and the Northern Ireland Justice Department to issue statutory guidance on certain parts of the Bill, including those dealing with offences of remote sale and delivery of knives. We intend that there should be guidance to retailers on what items are prohibited from dispatch to residential premises or a locker under Clause 18. I think the government amendment is adequate to cover this.

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[Baroness Hamwee]

My Lords, following exactly from that point, the Minister has relied on the wording “for religious reasons”, which would be substituted in the Bill by “in religious ceremonies”. By saying that the Government will continue to work on this, is she in fact suggesting that that is inadequate? While I understand the concerns, it seems to me that there is a lot in support of what she has been saying about the use of that phrase.

[Baroness Williams of Trafford]

I am trying to say that we are trying to come to a workable solution, particularly for the Sikh community. On the question of other legislation, what immediately springs to my mind is that there was of course the exemption for Sikhs on mopeds who were wearing a turban. So we are, I hope, trying to reach a solution that will work for the Sikh community.

Offensive Weapons Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Report: 1st sitting: House of Lords
Tuesday 26th February 2019 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, Amendment 1 is in my name and that of my noble friend Lord Paddick, as are all the other amendments in this group—Amendments 2, 15, 16, 25, 26, 64, 65, 67, 68, 70 to 73, 78 and 79—16 amendments, each deleting a three-letter word. The word is “all”, as in taking “all reasonable precautions” and exercising “all due diligence” in connection with the sale of corrosive products to someone under 18, in Clause 1; the sale of bladed articles to someone under 18, in Clause 15; and the delivery of bladed articles to residential premises, in Clause 18. These are defences to the offences contained in those clauses, so it is no minor matter.

The meaning of “all reasonable precautions” and “all due diligence” emerged in Committee. The noble Lord, Lord Lucas, raised it, others followed it up, and the noble and learned Lord, Lord Judge, said:

“If I might say so, ‘all’ means ‘every’. Without ‘all’, you have just to take reasonable precautions and show due diligence. Once you put ‘all’ in, you fall foul of any particular point you could have but did not look at and did not do”.


Clearly, this is a very high bar, and it took a number of noble Lords somewhat by surprise, I think. I am unclear about what it might mean, particularly when coupled with “reasonableness”, because it is not just about doing the reasonable thing; it is about doing every reasonable thing. The Minister said in that debate:

“All roads are leading back to the guidance”,—[Official Report, 28/1/19; col. GC 163.]


having told the Committee that the Government want to produce guidance—we will debate that later—to ensure that retailers and sellers know what steps they could take, with regard to Clause 1, to ensure that they comply with the law. On the wording, is it about steps that they can take or steps that they must take? It seems to me that the wording used throughout the Bill does not allow for common-sense alternatives or even minor omissions. Of course, guidance is produced by the Executive, not by Parliament. Indeed, to end with a question, will one necessarily have complied with the law, even if one follows guidance to the letter, if all reasonable precautions and all due diligence have to be applied? I beg to move.

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

My Lords, as the noble Baroness explained, these amendments relate to the level of burden of proof required for retailers and delivery companies if they want to avail themselves of the defences available to them if charged with an offence of selling or delivering a corrosive product or a bladed article to an under-18 or the offence of delivering a corrosive product or bladed article to a residential address. Under these amendments, retailers and delivery companies would need to prove just that they had taken reasonable precautions and exercised due diligence to avoid the commission of the relevant offence, rather than, as the Bill provides, that they took all reasonable precautions and exercised all due diligence, as the noble Baroness explained.

I am not persuaded, despite the noble Baroness’s words, that it is unjust to require a person to prove that they have taken all reasonable precautions and exercised all due diligence to avoid selling or delivering corrosive products or bladed articles to under-18s or to avoid delivering such products or articles to residential premises. Retailers have had to operate to this standard under existing law and to lower the burden of proof would leave us with a burden of proof in the Bill that was out of sync with existing legislation. I will give some examples.

Under Section 141A(4) of the Criminal Justice Act 1988, it is a defence for someone charged with the offence of selling a knife to an under-18 if they can prove that they,

“took all reasonable precautions and exercised all due diligence to avoid the commission of the offence”.

The Licensing Act 2003 requires a defendant to prove that,

“he had taken all reasonable steps to establish the individual’s age”,

in regard to the selling of alcohol to an under-18. Under Section 7 of the Children and Young Persons Act 1933, which prohibits the sale of tobacco to under-18s, the defence is in similar terms. Part 4 of the Gambling Act 2005 includes various offences in relation to children; under Section 63, it is a defence to show that the defendant “took all reasonable steps”.

As a result of these examples in law, I urge that the higher burden of proof is an established defence, and one which has been in place for a significant amount of time without issue. Retailers now know what is required of them by way of proof if they wish to make use of the defence if charged with the offence of selling a knife or bladed article to an under-18. It is understood by retailers, Trading Standards and the police. Having two different burdens of proof in place would, I think, be confusing to all concerned. I do not think it would help the police, Trading Standards officers, prosecutors or the courts. Noble Lords are always calling for consistency, and I think there is a strong argument for consistency here. I hope that, on reflection, the noble Baroness, Lady Hamwee, would agree and be happy to withdraw the amendment.

[Baroness Hamwee]

My Lords, it is certainly a burden in the sense of the weight of it rather than the balance of it, which is how we normally consider the burden of proof. The Minister says that retailers now know. My question was whether they will know from the guidance that is to be produced. I shall have to leave that hanging, as this is the point that we are at. Maybe the Minister will be able to answer that when we come to the next group and talk about guidance. Perhaps we will also have to wait for an answer on whether guidance across all the offences—not just those within this Bill but others that the Minister mentioned—will be consistent. Clearly, we are not going to be of the same mind here but I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

I thank noble Lords for their comments. I agree that, as the noble Lord, Lord Kennedy, and the noble Earl, Lord Erroll, pointed out, people have to understand their responsibilities. In Committee there was much debate about the need for guidance, particularly for retailers, manufacturers, delivery companies and the like, about the operation of the provisions in the Bill relating to the sale and delivery of corrosive products and offensive weapons.

In response to the debate in Committee, I said that it was our intention to issue appropriate guidance. A number of noble Lords, including my noble friend Lord Lucas, wanted to see that commitment reflected in the Bill, and government Amendment 106 does just that. It enables the Home Secretary, Scottish Ministers and the Northern Ireland Department of Justice, as the case may be, to issue guidance about the provisions in the Bill, and the existing law as amended by the Bill, relating to corrosives and offensive weapons.

Importantly, the amendment also sets out that, before guidance is published, the relevant national authority must consult,

“such persons likely to be affected by it as the authority considers appropriate”.

We would, for example, expect to consult organisations representing both small and large retailers of knives and corrosive products. This would ensure that those directly impacted by these measures have a hand in developing the guidance that is most useful to them. That is an important part of the Bill.

Were he in his place, I hope that my noble friend Lord Lucas would agree that government Amendment 106 covers similar ground to his Amendments 3 and 81 and, indeed, provides a more comprehensive list of the provisions where it might be appropriate to issue guidance. Government Amendments 108, 112 and 113 are consequential to Amendment 106. I hope that on that basis the noble Baroness will be content to withdraw Amendment 3 and support the government amendments.

[Baroness Hamwee]

My Lords, I am indeed. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

The prosecution may well fall on a director, because the director is seen to have fallen short in some of the processes to comply with the law. However, yes, it is usually the corporate body rather than the director, but I see the noble Lord’s point.

We have heard that there is evidence that short sentences are ineffectual regarding rehabilitation. The Justice Secretary and Prisons Minister are looking at the question of short sentences and the use of prison in the round. A number of noble Lords have raised that; the noble Baroness, Lady Hamwee, quoted the Justice Secretary in a speech on this very subject.

We have already been clear that custodial sentences should be seen as a last resort, and that offenders with complex needs—including female offenders—should be dealt with in the community wherever possible. However, we must ensure that sentencing matches the severity of a crime, and prison must always be available for the most serious offenders. I am concerned that we do not send out the wrong message that the use of corrosives as a weapon is somehow less serious than the use of knives.

Amendments 32 and 34 seek to strike out the provisions in respect of mandatory minimum sentences in Clauses 8 and 9. Again, the effect would be to treat carrying corrosive substances in a public place less seriously than carrying a knife. These clauses mirror existing knife legislation, and ensure that anyone aged 16 or over who is convicted of a second possession offence or a similar offence—such as an offence relating to a knife—will receive a custodial sentence unless the court determines that there are appropriate circumstances not to do so. The use of minimum custodial sentences will make it clear to individuals that we will not tolerate people carrying corrosives on our streets and other public places with the intention to harm or commit other crimes, such as robbery.

We are talking about serious offences here, where someone is carrying a corrosive substance which could result in someone being attacked and left with terrible injuries, as well as the fear that this can instil into communities. We should bear in mind that the requirement to impose the minimum sentence is not absolute; there is judicial discretion. The court must consider the circumstances of the case, and if there are relevant factors that would make it unjust to impose the minimum sentence, the court has the latitude not to do so.

I recognise that there is a wider debate to be had about our sentencing framework, but this Bill is not the place for it. We are dealing here with particular offences and seeking to ensure consistency between how the criminal law deals with the sale, delivery and possession of corrosive products and substances on one hand, and of knives and offensive weapons on the other. On that basis, I hope that I have been able to persuade the noble Baroness to withdraw her amendment. If not, I invite the House to agree that for these offences, short custodial sentences and minimum custodial sentences continue to have a place, and that noble Lords will accordingly reject the amendment.

[Baroness Hamwee]

I am grateful to all noble Lords who have contributed. The noble Lord, Lord Hogan-Howe, may not expect me to be grateful, but I am. His raising the issue of weekend sentences was very interesting, and confirms what has come from a number of noble Lords—that the legislation around sentencing generally needs a good look at and some updating to how it operates. Even if you take a firm position one way or the other regarding short sentences, the way that the provisions in legislation interact is clearly troubling a number of noble Lords.

I do not want to respond to all the points made and repeat what I have already said. I am sure that the noble Lord, Lord Hogan-Howe, and my noble friend Lord Paddick could reel off the offences that might be used in the case of the use of corrosive substances causing injury. That is not the subject of these amendments or of the clauses in question.

I also regret the absence of the noble and learned Lord, Lord Judge, who has made it very clear that he opposes mandatory sentences. I will leave it at that point and beg leave to withdraw the amendment.

Citizenship Status

Debate between Baroness Williams of Trafford and Baroness Hamwee

Wednesday 20th February 2019 Lords Chamber

[Baroness Williams of Trafford]

I can confirm to the noble Lord that these decisions are compatible. All those deprived of citizenship have been deprived on the basis that such an action was compatible with Articles 2 and 3 of the ECHR. On the point about bringing someone back and bringing them to justice, if someone is in Syria, we do not have consular support there, and one would question how we could do that. There is no infrastructure in place that makes it possible to go into Syria. As my right honourable friend the Home Secretary said, he does not want to put Foreign Office or Home Office officials’ lives, or anyone’s lives, in danger by asking them to go out to Syria.

[Baroness Hamwee (LD)]

Does the Minister agree that it would be conducive to the public good—the criterion applied here—to bring back someone who could tell the authorities here how she was recruited? We could learn from her. The recently retired Independent Reviewer of Terrorism Legislation today made the point that some people who have come back from terrorist activities have proved the best interlocutors in persuading young people away from radicalisation.

May I ask about the child? The Minister said—as was said on Monday—that an individual case cannot be discussed. However, that seems to be exactly what the Home Secretary has been doing. The Minister also said that the rights of the child will not be affected. What does that mean in practical terms?

[Baroness Williams of Trafford]

My Lords, on whether it would be conducive to the public good if someone could be brought back and rehabilitated in this country, or could tell the British authorities what was going on and perhaps act as a conduit for good, without talking about a specific case, there are of course examples of people who have come back here and been rehabilitated through Channel programmes. That is absolutely correct.

Turning to the rights of the child, if any child is a British citizen, that child’s parents having been deprived of their citizenship does not affect the child’s citizenship.

Immigration (Leave to Enter and Remain) (Amendment) Order 2018

Debate between Baroness Williams of Trafford and Baroness Hamwee

Thursday 14th February 2019 Lords Chamber

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

My Lords, the order was laid before Parliament in December and is required to enable nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America who are aged 12 or above and seek to enter the United Kingdom as a visitor under the Immigration Rules to be granted such leave by passing through an automated gate, without having to be interviewed by an immigration officer. The change is needed to give effect to the announcements made by both the Chancellor and the Home Secretary that these additional nationalities should be permitted to use our e-passport gates. Noble Lords’ agreement to the order will ensure that the change can be implemented in time for the summer.

The UK already leads the world in the use of e-passport gates for passenger clearance. We have more e-passport gates than any other country and we allow more nationalities to use them. We intend to continue to build on their use as they provide a safe and secure means of processing low-risk passengers, allowing our highly trained Border Force officers to focus their efforts on those who seek to abuse or exploit the system and wider border threats.

The change will have a transformational impact on the border experience for the additional nationalities, providing them with significantly faster entry to the UK. It should also have a knock-on benefit for the clearance of non-EEA passengers arriving at ports with e-passport gates, by removing an expected 6.5 million passengers from the staffed non-EEA queue.

Expanding e-passport gate eligibility to these additional low-risk nationalities will also help us to meet the challenge of growing passenger numbers, ensuring that arriving passengers are dealt with both swiftly and securely. In 2017, there were 137 million arrivals at the UK border, an increase of 5.4% on 2016. Within those figures the percentage increase in non-EEA passenger arrivals was even more noticeable, up more than 17% on the previous year. Passenger numbers are projected to continue to increase, with the Department for Transport predicting year-on-year growth on aviation routes alone of 2.8% to 2020. That is of course good news for the UK, demonstrating that we continue to be a destination of choice.

Keeping the UK’s border secure remains our top priority, and I assure noble Lords that this decision has been taken only after careful consideration and in consultation with security partners across government. Nationals from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States have been identified as suitable for using the gates based on a number of factors, including levels of co-operation with the UK on border matters.

Part of our long-term vision has always been to make better use of digital technology and greater automation to improve the passenger experience while maintaining security at the border. As noble Lords will be aware, we recently published a White Paper setting out detailed plans for the UK’s future skills-based immigration system, which includes measures to strengthen border security and improve journey crossings for legitimate passengers. The expansion of the use of e-gates needs to be seen in the context of that longer-term programme of work, where we intend to use the UK’s exit from the EU as an opportunity to develop a new global border and immigration system that makes better use of data, biometrics, analytics and automation to improve both security and fluidity across the UK border.

I also reassure the House that this is not a cost-cutting measure—far from it. The Government are increasing Border Force officer numbers, and their powers and responsibilities will remain unchanged. We are committed to ensuring that Border Force has the resources and the workforce needed to keep the border safe.

This new order will allow nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States to be granted leave to enter as visitors for up to six months when they pass through an e-gate at a UK port, including our juxtaposed controls for Eurostar services. Nationals of these countries coming to the UK for other purposes, such as work or study, will also be able to enter using our e-gates but no change to the law is needed for them as they will already hold the necessary leave in the form of a visa or residence permit. We estimate that up to 6.5 million passengers from these countries will benefit from the change. This expansion in eligibility is therefore a clear signal to the rest of the world that the UK is open for business and will allow us to control our borders in the UK’s best interests. Once approved, we expect the change to be fully implemented in time for the summer. I commend the order to the House.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for explaining the draft order. I ask your Lordships to bear with some cynicism on my part.

The obvious questions are: why this order and why now? The Minister said that it is required. It is not, on the face of it, Brexit related—we have enough Brexit-related secondary legislation to fill the Order Paper—yet the Government have said that EU citizens must not be allowed in future to jump the queue at the border. You take your choice as to whether that is a political observation or because of the chaos that would be caused if they had to be checked in by Border Force in addition to those who are now. A different way of looking at the order is that we have to let some non-EU citizens in by equivalent arrangements because we cannot let EU citizens uniquely use the e-gates.

We have heard about the cohort who will be affected. I have got nothing against EU nationals or any of these nationals, quite the contrary, but they will be allowed to enter without any form of visa—unless, as the Minister said, they are coming for work purposes and so on—and without an explanation as to the duration of the stay, though it should be six months, the purpose of the stay or the means by which they will support themselves. The assumption is that all will be seeking to enter temporarily.

This leads to my first question: what if they want to stay longer? Presumably if they know that before they arrive they will have applied in their own country, but what if they take the decision during the six-month period? Will they have to leave the UK and apply out of country, which is what many people in difficult immigration situations have to do at present?

UK visitors to the United States need an electronic visa waiver before they depart. They are questioned at the border, can still be refused entry and have their fingerprints and photographs taken. The Department of Homeland Security assumes that all visitors are seeking to enter to remain permanently—in other words, illegally—until the visitor proves otherwise. So the rhetorical question is: border control?

Will there be further instances of UK citizens acting on behalf of the state as a result of this new arrangement—employers, landlords and banks checking on the status of an extra group of people who are living here? We are often told that the largest number of people in the UK without leave to be here are over-stayers, and we know how much more difficult it is to find and remove them than to not give them leave in the first place. I wonder whether this is a false economy.

The Explanatory Note tells us that there will be no significant impact on the private, voluntary or public sectors and that therefore there is no impact assessment. Should we really accept that without questioning?

I am all for efficiency and the use of reliable technology, but by identifying these nationalities as lower risk, by implication others are higher risk. I simply observe—there is no accusation in it; I say it to myself as well as to others—that we must be careful not to appear to be prejudiced in any way.

It is not news to any noble Lord that my instincts are to want the UK to be as open and welcoming to visitors as possible. I do not subscribe to the rallying cry of “take back control”—none of my noble friends do—but one must ask whether this order is taking back control of our borders.

--- Later in debate ---

[Baroness Hamwee]

People’s plans change, so my question was about whether they would have to leave the UK to make the application or whether it could be made in this country without their having to leave.

[Baroness Williams of Trafford]

I think the answer is not necessarily. Individuals entering the UK via the e-passport gates will be granted six months’ visitor leave. This is the standard leave granted to visitors. They will be required to leave the UK at the end of the six-month duration of their visitor leave. If they want to extend their stay, they cannot. They must return home and reapply. I was not sure about that, so I thank my officials for that answer.

The noble Baroness talked about going from the UK to the US being different. Yes, it is an entirely different experience when going to the US. The noble Lord, Lord Kennedy, asked about reciprocity and other noble Lords asked whether we will expect other countries, such as the US, to do the same as we have done. Obviously, we operate the UK border in our way and in the best interests of the UK. We would expect other countries to follow suit in due course. I guess that is a partial answer on reciprocity, but I would like the eventual outcome of this to be that other countries do the same.

Child Refugees

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 11th February 2019 Lords Chamber

[Baroness Williams of Trafford]

The right reverend Prelate is absolutely right: any child who makes that journey is in an incredibly vulnerable position from the moment they leave their country of origin to the moment they arrive here, whether it is to people traffickers who bring them across dangerous seas, the dangerous seas themselves or the exploitation they might face during the journey or when they arrive here. Local authorities will provide wraparound care through the various agencies that might be involved with these children. The right reverend Prelate is right to say that psychological trauma is one of the main things that these children suffer. The message is that children should not be sent across these dangerous regions and across the sea to get here. They should be helped in the region or become refugees, at which point this country will give them the security that they need.

[Baroness Hamwee (LD)]

My Lords, 1,075 is a drop in the ocean given the appalling situation in the region. Last week, the Minister assured the House that the Home Office takes very seriously the importance of quality assurance, and that must include efficiency. To give just one example, in October, the Court of Appeal described as patently inadequate the Home Office’s dealing with unaccompanied asylum-seeking children. Is the Minister satisfied that quality assurance really is embedded in the Home Office?

[Baroness Williams of Trafford]

My Lords, 1,075 is not the definitive number: it is 1,075 who have been settled through the Vulnerable Children’s Resettlement Scheme. In addition, there is the vulnerable persons settlement scheme, under which we have resettled almost 14,000 people, half of whom were children. I am confident that quality assurance is in place, and I expect it to be in place given that we are dealing with probably the most vulnerable children who settle in this country.

Windrush Scheme

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 5th February 2019 Lords Chamber

[Baroness Williams of Trafford]

My Lords, we do not usually talk about individual cases but, of course, this case was brought up earlier in another place with my right honourable friend the Home Secretary. He said earlier that the letter was received only at the end of last week. It is now Tuesday. He has said that he will deal with it as a priority.

I think that the Windrush issue shames all Governments of the last 40 years or so. The Home Secretary has endeavoured in every way to make right the wrongs, as he said, and the failures of successive Governments. Not only are the Windrush task force and Windrush scheme in place, the exceptional circumstances scheme and the compensation scheme—the details of which will be released very shortly—are also in place. We cannot rewrite history, but we can make right the wrongs suffered by these people over generations.

[Baroness Hamwee (LD)]

My Lords, in reporting on the Windrush generation, the Joint Committee on Human Rights, of which I am a member, said:

“We note that the new Home Secretary”—


as he then was—

“has instructed officials to take a sympathetic and proactive approach. A more humane approach to dealing with people who come into contact with the immigration enforcement system is indeed needed”.

We commented on the need for “quality assurance” and were told that a process for that was in place, although we have not heard details.

Willow Sims, who was mentioned by the noble Lord, appears to have run into trouble when a DBS check was made as long ago as last April. The Statement mentions referrals to the DWP. This is a matter for the whole of government. Quality assurance should apply to all departments that are involved. Are the other departments, including the DWP, exercising common sense and quality assurance and making referrals to the Home Office to sort out problems, which, as a matter of common sense, one would like to see?

[Baroness Williams of Trafford]

Certainly, there has to be a co-ordinated approach to this whole Windrush issue, as the noble Baroness said, and quality assurance is absolutely paramount given what some of these people have suffered, some for many years. So she is absolutely right. The DWP is certainly one of the referral routes for the Windrush generation because some of them may have lost or not been able to receive benefits to which they are entitled. I totally take her point. Yes, my right honourable friend did say when he became Home Secretary that a humane approach was definitely the new culture within the Home Office.

Offensive Weapons Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 30th January 2019 Grand Committee

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

My Lords, the purpose of the amendments in this group is to remove loopholes in the law relating to the sale of offensive weapons to persons under the age of 18. Amendment 40 amends Section 141A of the Criminal Justice Act 1988, which prohibits the sale to a person under 18 of knives, knife blades, razor blades, axes and other articles with a blade or sharp point made or adapted for causing injury.

The prohibition does not apply to weapons covered by Section 141 of the 1988 Act. Section 141 prohibits the supply of certain offensive weapons that are set out in secondary legislation. These include knuckle-dusters, push daggers and zombie knives, which are excluded from Section 141A on the basis that their supply, including their sale, is already prohibited and therefore the prohibitions on their sale to a person under 18 and their dispatch to a residential premise or locker is not relevant.

However, a significant number of exclusions and defences apply to the supply of weapons covered by Section 141. These include an exemption for antique weapons and defences for swords with a curved blade of 50 centimetres or more made before 1954 or by traditional methods and for sporting, re-enactment purposes and religious reasons. Given these defences and exemptions, it is possible that offensive weapons covered by Section 141 could be sold to a person under the age of 18. Amendment 40 therefore removes the exclusion of offensive weapons covered by Section 141 from Section 141A of the 1988 Act. Amendments 48 to 53 to Clause 19 are directed to the same end.

Clause 19 defines a “bladed product” for the purposes of the new offence of arranging delivery of a bladed product to a residential premise or locker under Clause 17. “Bladed product” excludes any weapons in an order made under Section 141 of the 1988 Act. It is therefore possible that offensive weapons covered by Section 141 could be dispatched to a residential premise or locker on the basis that they were covered by one of the exemptions or defences available to Section 141 articles—for example, if they were an antique or intended to be used for sporting purposes. Amendments 48 to 53 therefore remove the exclusion of Section 141 from Clause 19.

I hope that, with that explanation, noble Lords will agree that these amendments sensibly close a gap in the existing law and the provisions in Clause 19. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I am glad as always to have the Government’s explanation for their amendments, and my comments are not about substance. Earlier in the Bill as well as on this clause, I found that I spent quite a lot of time going to and fro between Section 141, the order, Section 141A and so on. That is okay for us—it is our job—but one would not like to think of members of the public having to scour through all this to find out what sort of offensive weapon they might have. Will the Home Office give some thought as to how they can produce a Keeling schedule for the public?

[Baroness Williams of Trafford]

I can utterly appreciate the noble Baroness’s point. When I look at legislation, I have to refer to other legislation, and it can be a minefield, but such is the nature of legislation built up over time. The guidance will help people in that endeavour and, as I said on Monday with reference to another issue, it will be very helpful to members of the public in knowing exactly where the offences are and what aspects of the Bill strike out other aspects of legislation.

--- Later in debate ---

[Baroness Hamwee]

I shall speak also to Amendments 43E, 63A, 63B, 64A, 65A, 65B, 65C, 65D, 65E and 65F. This takes us back to community sentences. We debated their value and the problems associated with short custodial sentences extensively on Monday. I do not want to rerun all the same points today on Clauses 17, 22, 23 and 24, although I have noticed that Clause 23 brings in the possibility of an indictment where the term would be much longer. To the extent that that is relevant to this discussion, it strengthens my view that seriousness can be reflected by the prosecution being sent up to the Crown Court. The Minister directed the Committee to Section 150A of the Criminal Justice Act 2003 reminding us—or in my case, informing me—that a community sentence can be imposed only if the offence might attract a custodial sentence. I would say that was game and set—or some other sporting analogy—but I am not sure it is quite yet match, at least not until I am convinced that this is a good way of going about sentencing as there is a much wider issue behind this.

Section 150A does not apply if Section 151(2), which confers power to make a community order, does apply. Section 151 is about community orders for persistent offenders previously fined. Am I right in thinking that this is not yet in force? Has it been shelved? Is there an intention to review it? More widely, does the Minister accept that, given the potential value of community orders, the generally acknowledged problems with short custodial sentences and the state of our prisons, it would be a good move to review Section 150A as she explained it on Monday? I beg to move.

[Baroness Williams of Trafford]

My Lords, this group of amendments echoes one of our debates on Monday; namely, whether it is appropriate to provide for custodial penalties of less than six months’ duration for certain new offences in the Bill. It will not come as a surprise to the noble Baroness to learn that I remain unpersuaded of the case for replacing custodial sentences of up to six months with community sentences for the knife-related offences in the Bill. As we have already discussed in Committee, we all know that the impact of knife crime on society is devastating. Young people getting hold of knives by using remote sales can have tragic consequences if they go on to use the weapon for a crime. The possession of prohibited weapons is and should be a serious offence. The Government believe it is proportionate and fair that those committing these offences should expect robust sentences.

The noble Baroness will recall that I explained on Monday that community sentences cannot be set as a maximum penalty for an offence as, under the Criminal Justice Act 2003, community sentences are available only for offences which are imprisonable. In providing this maximum custodial penalty, we are providing the courts with a range of penalties. This gives courts the option to impose a custodial sentence, a community sentence, and/or a fine as they deem appropriate, having regard to all the circumstances of the offence and the offender. I know that the noble Lord, Lord Kennedy, welcomes this flexibility and the range of sentencing options which we considered earlier in the week.

As I mentioned on Monday, there is also the requirement under the Criminal Justice Act 2003 that the court has to be satisfied that the offence is so serious that only a custodial sentence can be justified. I therefore remain confident that the courts will sentence offenders appropriately, taking into account the circumstances of the offence and the offender. Where a custodial sentence is justified, they will impose it, but where a community order would be better for punishment and rehabilitation, while protecting the public, then nothing in our provisions prevents that.

The noble and learned Lord, Lord Judge, is not in his place, but he said on Monday that,

“some short sentences do some good because they punish the offender”.—[Official Report, 28/1/19; col. GC 169.]

I wholeheartedly agree with that sentiment, and we should not now be depriving the courts of the full range of sentencing options.

The noble Baroness, Lady Hamwee, asked whether the provisions of the Criminal Justice Act she referred to are in force. I will have to write to her on that specific question, if she is amenable to that. On that note, I ask that she withdraw the amendment.

[Baroness Hamwee]

I would expect the Minister to answer no less. She started by saying that I would not be surprised by the Government’s response, and she will not be surprised to hear that we are not persuaded either.

I accepted what she said about Section 150, which is why I looked it up and spent the usual frustrating few minutes trying to work out whether something that applied to it was in force or not. I think it is not, which is why I took the opportunity to ask the question. My overall question is whether it would be a good move to review Section 150A and bring that part of our attitude to sentencing up to date. But we clearly cannot pursue this any further today and I beg leave to withdraw the amendment. I will, however, ask the Minister to accept that I have fulfilled my undertaking to be very quick—the clock had not even reached one minute by the time I had finished.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for setting out the amendment in the name of her noble friend Lord Paddick. As we have seen from earlier debates, these are complicated provisions but unavoidably so, I am afraid. She wants to know two things: first, how the buyer can know what purpose the bladed product will be used for and, secondly, why the provision relating to the adaptation under Clause 18(3) differs from that for design and manufacture under Clause 18(2). I hope to be able to provide some clarity but perhaps I may first summarise what we are talking about.

The defences at subsections (2) and (3) of Clause 18 are aimed at allowing the dispatch of bespoke, handmade knives to a person’s home address. One issue that came out clearly from the consultation is that there is a significant number of makers of handmade knives. These are often individual tradespersons who make specialist knives for individual buyers. The most commonly cited example, which the noble Baroness gave today, is chef’s knives, which are made or adapted to specifications provided by the chef—for example, on the length or shape of the blade, or the weight of the handle. Such handmade bespoke knives are very expensive and, in most cases, there is a relationship between the seller and the buyer, which means there is no risk of these knives being sold to a young person. We therefore wanted to allow such knives to continue to be sent to the buyer’s home address.

Clause 18(2) covers where a buyer asks a seller, who in such cases is also likely to be the manufacturer, to design or make specific knives to specifications that they have provided. This would cover where a chef, for example, asks the seller to make them a set of knives to very specific specifications. The seller in these cases will often have a relationship with the buyer and it should be easy for the seller to prove that they are making the knife to specifications, because they will have correspondence with the buyer setting out the requirements.

Clause 18(3) covers where the buyer wants an existing knife adapted to meet specific specifications—for example, where a chef wants a blade shortened or changed in shape or where they want the handle changed, or where a disabled person wants changes to a knife so that they can use it—and these changes are to enable the knife to be used for a particular purpose, such as catering, outdoor pursuits or other activities. Again, in these cases the seller will often have a relationship with the buyer and they will easily be able to evidence that the bladed product was adapted in accordance with specifications of the buyer and the purpose for which it was going to be used, because this would be part of the conversation or communication on which adaptations to make. For example, the maker would know that the knife was needed for gutting fish—that issue was raised the other day—or because the buyer had one hand and needed it for sawing branches, as that would be part of the decision on what changes needed to be made. The purpose of Clause 18(3)(b) is to exclude the etching of a person’s name on a bladed product, as we did not want to provide a defence for bladed products where the only adaptation to the product was the engraving of words on, or similar superficial adaptation to, the product.

I hope that, in light of that explanation, the noble Baroness will be content to withdraw the amendment.

[Baroness Hamwee]

My Lords, the Minister’s last point about engraving a name had not occurred to me, although I do not quite see how it is distinct from the situation under subsection (2), where you might ask for a product to be manufactured with the specification of adding your name. I will go through what the Minister said, but for the moment, at any rate, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

In terms of better regulation, I do not think that it has but I will double-check before Report. It probably has not.

The noble Earl, Lord Listowel, asked about the position in other countries and the approach we have taken. Of course we always learn from other jurisdictions, and I hope that they learn from us, but we must legislate as we consider it appropriate to address the position as we find it in this country. Regarding the problems underlying drug addiction, we will come on to that when we reach Amendment 63 in the name of the noble Baroness, Lady Meacher, who I do not think is in her place at this point.

I want to make one final point about articles with a blade or point: we do not want to capture items such as screwdrivers and crochet needles because they are not usually used for harm—that is not to say they are not used for harm, but not usually. Hence we are referring to “blade” and not “sharp point”. I hope that, with those explanations, the noble Lord will withdraw his amendment.

[Baroness Hamwee]

Before we get to that point, the Minister has mentioned guidance, which will certainly be very welcome. Can we be assured that the practitioners—I do not mean those with real knives, but those in the criminal justice sector, prosecution, the Bar Council, police and so on—are consulted about how the guidance is presented? I can see a nod at that. That will be very helpful.

I cannot help observing that whoever gave the Minister the note about crochet needles is not someone who uses them, because they have a curved end.

Offensive Weapons Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Committee: 1st sitting (Hansard): House of Lords
Monday 28th January 2019 Grand Committee

[Baroness Hamwee]

I mentioned that, not long before coming into this debate, I—and no doubt other noble Lords—had a note from the British Retail Consortium. It also makes the point about how helpful it would be to have guidance—“possibly through guidance”, it says. Different situations may be different, but we are all concerned about not just protecting the seller but making sure that purchasers are able to purchase when it is reasonable to do so. I think it was my noble friend who mentioned John Lewis’s current policy on sending cutlery through the post.

[Baroness Williams of Trafford]

The noble Earl, Lord Erroll, and the noble Baroness, Lady Hamwee, essentially come back to the point that the noble Lord, Lord Kennedy, made. Sellers want to make sure they are abiding by the law but, as the noble Baroness said, buyers want to make sure they are abiding by the law as well. On the systems that the noble Earl raised, I hope I did not suggest that he was trying to imply a specific system. I made the point that it would be wrong to specify a system in the legislation, given that systems are developing all the time.

To answer the point from the noble Earl, Lord Erroll, about age-restricted products, I have already mentioned knives, alcohol and tobacco, but lottery tickets are age-restricted as well, of course. Retailers are very used to operating in these systems, without a specific approved system in place.

--- Later in debate ---

[Baroness Williams of Trafford]

I am happy to look at that point. Of course, every case is different, so I cannot give a pronouncement here in Committee this afternoon. I have visited Styal prison, an all-female prison near to where I live. I would imagine that Styal is an example of best in class, as it tries to support the family as opposed to just dealing with the woman in custody. I recommend any noble Lords who get the chance to visit that prison, which is an example of a very supportive environment.

[Baroness Hamwee]

My Lords, we have ranged widely and it is tempting to respond to some of the points that have been made, continuing that wider debate, as opposed to focusing on Clauses 1 and 3, but I will try to resist that.

I think that we all agree with the noble Baroness, Lady Newlove, that this is about the quality of sentences. I would regard it as rather despairing to accept that there should be imprisonment because community sentences are inadequate—not fit for purpose, in the jargon. I referred to comments made in April last year, I think, by the Secretary of State for Justice, David Gauke, in response to evidence published by the MoJ showing that, for people with matched offending backgrounds, community orders were more effective than a short prison sentence at reducing offending.

I should make it clear that we are not in favour of selling corrosives that may be misused—I do not want that to come out of this debate. Clause 6 includes the offence of possession, and it is this clause that prompts me to ask whether the Minister can confirm that the offences under Clauses 1 and 3 are summary only offences. Clause 6 refers to conviction on indictment, which would allow imprisonment for up to four years. One always learns something, and I did not expect to learn about the 2003 Act. There are two ways of looking at that: either our amendments are fatally flawed or we have material to come back to at Report. That is neither a threat nor a promise, but perhaps the Minister can answer my question about summary only offences.

[Baroness Williams of Trafford]

I can confirm that to the noble Baroness.

[Baroness Hamwee]

We have all shared a lot more of our views on this Bill than I thought likely to be the case when I tabled these two amendments. I beg leave to withdraw.

--- Later in debate ---

[Baroness Williams of Trafford]

I am sure that the noble Baroness is very much comforted. I hope I can clarify the meaning.

Amendment 12 seeks to test why it is necessary to include in Clause 2(6)(a) the words,

“by the same or a similar method of purchase to that used by the buyer”.

There are many different ways to make purchases online or in response to an advertisement by post or telephone. The simple purpose of the condition set out in Clause 2(6)(a) is to ensure that, at the time of making the sale, the seller had the required arrangements in place to verify the age of the buyer. This would assist in proving that an offence had been committed.

Amendment 16 seeks to clarify why Clause 2(10) uses the term “supply” instead of “delivery”, given the terms of the Clause 1 offence. The use of “supply” is correct in this context because it is about the actual handing over of the product to a person or their representative at the collection point, rather than its delivery to the address from where the buyer ordered the product. I hope that provides clarification, although the noble Baroness, Lady Hamwee, is looking even more puzzled than she initially was.

[Baroness Hamwee]

My Lords, I am afraid I remain a bit puzzled. I do not find all of this Bill entirely easy. My prejudice was confirmed this morning when, ironically, I got a rather painful paper cut from the Offensive Weapons Bill. On the second point, “supply” has all sorts of other connotations, particularly with the drug trade. That perhaps diverted me, but “delivery to a person” is not the same as delivery to premises. I remain puzzled by that. I will have to read what the Minister said about Amendment 12, but I thought she more or less said what I said I thought it should mean without the rather difficult words. I will go back and read that.

--- Later in debate ---

[Baroness Williams of Trafford]

Would it be helpful if I wrote to noble Lords giving examples?

[Baroness Hamwee]

I think that would be an excellent idea. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

You can buy it from either, but the mechanisms for age verification are slightly different.

[Baroness Hamwee]

We have referred quite a lot to Amazon. I do not use it very much, but the few times I have, I have ordered from Amazon but got my items from the producer or seller, which was often in the UK. Is the seller overseas or in the UK in that situation?

[Baroness Williams of Trafford]

If the seller is in the UK, the seller is in the UK. If the seller is overseas there is a slightly different mechanism. As I said, that is because of our ability to enforce sales in the UK as opposed to online sales abroad. The two are very different, but we are banning the delivery of corrosive substances to under-18s when ordered from an overseas seller, just as we are banning that here.

[Baroness Hamwee]

But if I order from Amazon, am I buying from Amazon or from the manufacturer in the UK?

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I fear that I am about to confuse people further—I hope not—because the noble Baroness is effectively asking why Clause 4 is drafted on the basis that the delivery arrangements for an online sale made to a vendor based overseas will have been made at the point of contract and not subsequently. It therefore might be helpful if I explain how we have drafted the clause in this way.

The purpose of Clause 4(1)(c) is to avoid criminalising a delivery company in instances where an overseas seller has simply placed a package containing a corrosive product in the international mail. By doing this, it then places an obligation on the delivery company, and potentially the Royal Mail, to deliver the item without having entered into a contract or necessarily knowing that the package contains a corrosive product. If we did not have the provision in place and in combination with the provisions of Clause 4(1)(d), which makes it clear that the company was aware that the delivery arrangements with the overseas seller covered the delivery of the corrosive product, then delivery companies such as the Royal Mail would be committing an offence.

We want to mitigate this, which is why we have constructed the offence in this way so that it requires the delivery company to have entered into specific arrangements to deliver corrosive products on behalf of an overseas seller.

The noble Baroness looks far less confused than she did in my previous explanation and I hope I have provided the explanation she seeks.

[Baroness Hamwee]

My Lords, that is perfectly clear and I am grateful. I beg leave to withdraw the amendment.

Migrant Crossings

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 7th January 2019 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I too thank the noble Baroness for repeating the Statement without pausing for breath after the last subject. Like her and the noble Lord, I am very aware of the situation in Manchester. I am sure that she feels as I do. When you know a place well, as we both know Manchester Victoria station, these things become even more vivid in one’s mind.

This is an awful situation, but relatively small numbers are involved in the context of the international refugee position. I too wonder whether it is appropriate to focus on the recent Channel crossings or attempts to do so and whether, if we were not still in mid-Brexit mode, there would not have been a rather quieter and calmer reaction to the situation. The Statement refers to the NCA taking action. Can the Minister expand on what that action is? It talks about tackling criminal activity and says that trafficking puts lives at risk—as indeed it does—and we were told that one person has been arrested. Was that for a trafficking or smuggling offence? I would be glad for confirmation that we are not talking about immigration detention here.

Of course one agrees with the Home Secretary that getting into a rubber dinghy is not safe, but we would much prefer the “safe and legal routes to sanctuary” formula, which is well known and widely used, rather than the “safe and controlled” formula, which seems to be a newly coined phrase. Finally, the Statement refers to work in countries of origin, which of course we support, but that does not deal with people fleeing persecution or war. The UK has an obligation to consider all asylum claims properly and fairly and to grant asylum to those who are eligible, regardless of how they got here. After all, many certainly do not want to have to escape their own country by these means. Does the noble Baroness agree?

[Baroness Williams of Trafford]

The noble Lord and the noble Baroness will have to forgive me if I do not answer every single question. As they say, I have leapt from one subject to another.

The noble Lord, Lord Kennedy, asked about the use of language and the UK being bound by the 1951 convention. Yes, of course; we were bound by it before we went into the EU and we will continue to be bound by it when we leave the EU. He is absolutely right that facts must be examined first, which is why we do not make a Statement without knowing the facts. On the Royal Navy and the orders given to its vessels, those are military assets operating for a civilian or non-military purpose and the first rule of any vessel at sea is to protect lives at sea. Lives must be protected and everything else comes after. However, as the Home Secretary said, we do not want vessels to provide an incentive for people to take risky journeys at sea, putting their lives at risk. I understand that the cost of the deployment is £20,000 a day. As regards other operations in the Mediterranean, Spain is experiencing high demand for migrant crossings, as is Greece, and the operations in the Mediterranean continue. If the noble Lord asked me any other questions which I have not answered, I will write to him.

The noble Baroness, Lady Hamwee, asked me about the individual who was arrested and whether they have been charged with anything. As the legal procedure is ongoing, I cannot comment on that, but I will try to get an answer. She also asked about examining all claims. There are provisions in EU legislation and domestic rules to make claims inadmissible but we will fully examine the claims of those for whom we are responsible.

Migration: International Students

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 7th January 2019 Lords Chamber

[Baroness Williams of Trafford]

I have just explained that in my reply to my noble friend Lord Holmes: we whip this question up although the facts before us belie it. I simply do not believe that a 26% increase in the number of visa applications represents a country struggling.

[Baroness Hamwee (LD)]

My Lords, the Minister mentioned India. Did she hear the fascinating series of programmes, “As Others See Us”, on Radio 4 last week? A speaker from India asked—it was a rhetorical question—how we expect India to strengthen its ties with Britain without relaxing visa restrictions. He cited the period allowed for post-study work as being too short. He said, “You cannot take from us a free trade agreement without lowering the immigration restrictions which keep us out”. Are the slight extensions to post-study leave adequate to answer that question?

[Baroness Williams of Trafford]

To answer that question, look at the number of Indian students who are not just applying for but succeeding in getting student visas. How others see us, in terms of how Indian students see us, is as a country which they wish to learn from and study in. I know there is an issue about visa relaxation with India, because I was in Delhi last year, but the figures do not bear that out. Indian students are applying to universities in this country in droves.

Counter-Terrorism and Border Security Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 17th December 2018 Lords Chamber

[Lord Paddick]

My Lords, I am grateful to the Minister for her explanation. What comes across to me in her response to this and other amendments is that there is a degree of transparency and accountability, in that the Independent Reviewer of Terrorism Legislation will look at the Schedule 7 powers and the IPC, presumably, will examine those under Schedule 3. It is all very well for the Government, the independent reviewer or the Investigatory Powers Commissioner to be satisfied that these powers are being used appropriately, but they are not the people who need to be convinced that they are being used fairly: it is the communities—particularly the Muslim community—that need to be convinced. Publishing the religion of people being subjected to these powers is crucial if we are to get the Muslim community to work with us to defeat terrorism.

As I said when I introduced the amendment, people, or groups, can switch almost overnight. For example, the attempted bombings on 21 July 2005 were a carbon copy of those on 7 July, which did not go according to plan. They were supposed to involve four bombs on the Underground, and the copycat attacks on 21 July involved three on the Underground and one on a bus because of what happened on the 7th. That is how quickly the first attack was copy-catted by another group. It is the friends, neighbours and close associates of these lone wolves and groups of friends who will pick up on the changes in their behaviour that show they are moving from being radical to being violent and potentially deadly. It is therefore absolutely essential that we do everything we possibly can to win the trust and confidence of the communities from which these people come.

I am encouraged by the Minister saying that the Home Office statistician will be looking at the issue.

[Baroness Hamwee (LD)]

The Minister said that the Government will be looking at this with the chief statistician and the police. Can she give a timeframe for that? If she cannot do so now, can she come back to the House before too long with an idea of when we might expect some further information on this work?

[Baroness Williams of Trafford]

I will come back to the noble Baroness in writing.

Asylum Seekers: Removal

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 17th December 2018 Lords Chamber

[Baroness Williams of Trafford]

I totally agree with the noble Earl that these decisions are incredibly sensitive, in particular when it comes to the things mentioned by the noble Baroness, Lady Smith, such as political activities, sexuality and even religion, which has been mentioned many times in this House. I will be happy to meet the noble Earl. I do not know if I will be able to arrange for him to visit caseworkers, but I will be happy to outline for him the framework in which we make decisions.

[Baroness Hamwee (LD)]

My Lords, is the Minister confident that the Home Office’s country policy and information notes are always accurate and reliable? I understand that information is taken from a number of sources and that that can include newspapers from the country of origin. However, they may be countries where the regime interferes with press freedom.

[Baroness Williams of Trafford]

I can assure the noble Baroness that we are mindful of our human rights obligations. Our caseworking decisions go through three lines of scrutiny, and over the past few months we have indeed improved the scrutiny and decision-making processes. I am confident that the system we now have in place is far better and more humane than perhaps is the case with some of the criticisms that have been levelled at the Home Office in the past. The Windrush episode has reminded us carefully about how we should treat people who come to this country.

Counter-Terrorism and Border Security Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Report stage (Hansard - continued): House of Lords
Monday 3rd December 2018 Lords Chamber

[Baroness Hamwee]

My Lords, we too support these amendments and recognise the steps that the Government have taken. Perhaps I may put on the record a couple of comments made by the Law Society on this general area. Unfortunately, its briefing arrived too late for us to build on it by way of amendment, but it comments on legally privileged material being retained for use as evidence or for deportation proceedings. It gives the view that:

“Legally privileged material should not be retained for any purpose other than a potentially urgent need to prevent death, injury or a hostile act”.


It also comments on:

“The process by which material can be identified as constituting legally privileged material”,


and asks who is responsible for making the determination, as that is not,

“explicitly clear in the Bill as drafted”.

It continues:

“It is important that this determination is made by a legally qualified person who is capable of accurately assessing whether a given article is subject to legal professional privilege”.


As I said, I thought that it was worth putting those comments on the record.

My noble friend Lord Marks is sorry not to be able to be here this evening and asks that his thanks to the Minister for building on the indication given at the last stage is recorded. He too asks about what he calls an “unacceptable, dodgy solicitor”. I think that any dodgy solicitor is unacceptable—you do not have to fill two criteria. If an unacceptable dodgy solicitor is selected for a second time, he and I assume that the senior officer might give a further objection. My noble friend also asks whether the Government intend to issue a further draft code of practice relating to the considerations that senior officers should take into account when considering making these directions.

[Baroness Williams of Trafford]

I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Hamwee

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

[Baroness Hamwee (LD)]

My Lords, I want to raise two areas of questioning of which, I hope, the Minister has had notice. We have had correspondence and I am grateful to her and her officials, but I am keen to get the explanation in Hansard. Clause 1 provides for the making of overseas production orders, and Clause 1(8) provides for a treaty to be laid before Parliament under the Constitutional Reform and Governance Act 2010. I tabled an amendment covering this question on Report and I regret that I am still not entirely clear about the answer. Can we not provide for a reference to ratification on the face of the Bill? It would deal with Parliament’s involvement in the process and I think it is important that legislation is as clear as possible to the reader.

The Act provides for a two-stage process. One is the laying of a treaty; the other is Parliament’s role in ratifying it—or perhaps not ratifying it. I have asked the Home Office what the problem would be. I understand from the Minister that there may be operational timing reasons why one would want to designate an agreement after it had been laid before Parliament but before it has been ratified, and the Minister has also told me in correspondence that an agreement that came into force on ratification would impose that obligation immediately, which would be a problem. I am a little puzzled as to why one cannot provide, in the parliamentary process, either that a designated agreement comes into force at a future date linked to the designation, or that the designation is linked to ratification. I would be grateful if she could help me and the House as to the need not to include a reference to the second stage of the process.

The importance of this is that Clause 1 deals with designation of an agreement under Section 52 of the Investigatory Powers Act. That section relates to the interception of a communication in the course of transmission, as I understand it, not to other data. My noble friend Lord Paddick raised this in the debate and we would be grateful if the Minister would explain how all data is covered, not just data intercepted in the course of transmission. That phrase implies data intercepted before or at the same time as it reaches the recipient, so would it not include itemised phone bills, geolocation data and internet connection records?

Communication, the word used in the relevant section, is defined in the Investigatory Powers Act and the term “communications data” is also defined: they are different. The great importance of this is that at the previous stage your Lordships inserted a requirement for death penalty assurances—or to put it the other way around and more accurately, that an agreement should not be designated without death penalty assurances in the case of an agreement where it is possible that a person may receive a death penalty as a result of, or in connection with, the provision of data under that agreement. I hope that those two separate but closely linked areas of questioning are clear and I beg to move.

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

My Lords, I thank the noble Baroness for her explanation of her amendment. The powers in the Crime (Overseas Production Orders) Bill will work only if a relevant international agreement is in place. The effect of the amendment would be that an international treaty could not be designated under the Bill until it had been fully ratified. Ratification is the process by which relevant parties signal their consent to be bound by a treaty, contract or agreement. I hope I will be able to reassure the noble Baroness as to why it is not needed, and that she might be persuaded to withdraw it.

There may be operational reasons why a Government would want to designate an agreement under the Bill before the process to ratify a relevant treaty is finalised. If we had to wait until the agreement had been ratified before making the regulations that designate the agreement under the Bill, and the agreement came into force on ratification, there would be a delay, as the noble Baroness said, in respect of our use of the agreement. We may want the regulations to be in place when the agreement comes into force so that officers in the UK can immediately start applying for overseas production orders. I am concerned that we should not unnecessarily delay their access to vital evidence. I make it clear that designating the agreement under the Bill prior to ratification will not permit applications to be made until such time as the agreement has been ratified and is in force.

I will give a practical example of this. An example of an operational reason to designate an agreement under the Investigatory Powers Act prior to ratification arises in the context of the development of an agreement with the US. One of the core obligations of the agreement with the US will be the removal of any legal barriers that would prevent a UK company complying with a request from the US. The IP Act itself contains one of those barriers, in that it criminalises the interception of communications, save for where a person has lawful authority.

However, Section 52 of that Act provides lawful authority to carry out interception where it is at the request of,

“the competent authorities of a country or territory outside the United Kingdom”,

and the request has been made pursuant to an agreement which has been designated by regulations under that section. In effect, the designation of the agreement under Section 52 will be the removal of the legal barrier, thereby fulfilling our obligation. As the US agreement will come into force immediately upon ratification, regulations under Section 52 must have been made and laid before that point so that we can fulfil our obligations from the moment the agreement enters into force.

I stress that making regulations designating an agreement prior to it being ratified would not permit UK communications service providers to intercept communications in response to requests by foreign law enforcement authorities. Such activity would be permitted only once those regulations and the agreement came into force, which would happen on or immediately after ratification. This in no way changes or undermines the process of ratification or the scrutiny that Parliament is afforded of a treaty. Indeed, if Parliament resolved that the treaty should not be ratified, what is provided for in any agreement and the powers in the Bill could not be used. I hope that the noble Baroness is reassured on that point.

The noble Baroness’s second point was about how Section 52 of the IP Act covers all data, not just data intercepted in the course of transmission. As I said on Report, Section 52 can authorise obtaining stored as well as intercepted communications. Section 52 should be read alongside Section 4 of the IP Act, which outlines the definition of “interception” and related terms. According to that section, “interception” refers to the interception of a communication,

“in the course of its transmission by means of a public telecommunication system or a public postal service”.

A person intercepts a communication in the course of its transmission if the effect is to access any content of the communication “at a relevant time”. It is the meaning of “relevant time” that is significant. It can mean a time when the communication is transmitted but it can also mean, as Section 4(4) of the IP Act says,

“any time when the communication is stored in or by the system (whether before or after its transmission)”.

Counter-Terrorism and Border Security Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

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

[Baroness Williams of Trafford]

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

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

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

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

[Baroness Hamwee]

I asked about what is “reasonably practicable”.

[Baroness Williams of Trafford]

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

--- Later in debate ---

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

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

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

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

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

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

Stop and Search Powers

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 12th November 2018 Lords Chamber

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, rightly pointed out, the move to a much more intelligence-led stop and search has been more effective. But on the point about the number of black people being stopped and searched, we are quite clear that nobody should be stopped on the basis of their race or ethnicity. Forces must make sure that officers use those really quite intrusive powers in ways that are fair, lawful and effective.

The figures cited by the noble Lord, Lord Paddick, were highlighted by the Race Disparity Audit. I am sure he knows that. They make clear the importance of the transparency introduced by the reforms to stop and search which enable forces to monitor and explain the use of the power. He has just outlined a couple of forces in which there is a huge increase in the proportion of black people stopped and searched compared with the rest of the population. It is absolutely right that the police must explain the use of the power and make efforts to improve it.

[Baroness Hamwee (LD)]

My Lords, is the Minister able to answer my noble friend’s question about knife crime?

[Baroness Williams of Trafford]

My Lords, I apologise; I did not deliberately leave it out. The noble Lord is right to make that point. We are acutely aware of it, as is the Home Secretary. Recent stories in the papers have not made for good reading. There are several reasons why knife crime is on the increase, not least the link to drugs, I am afraid. Through the Offensive Weapons Bill and the strategy that we have recently produced, we are absolutely determined to tackle it.

Counter-Terrorism and Border Security Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

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

[Baroness Williams of Trafford]

As the third person to be not legally qualified to respond to this, I thank both noble Lords for raising some important issues with respect to Clause 16. As we have heard, the clause provides for how oral answers or information given to examining officers in response to questioning under Schedule 7 to the Terrorism Act 2000 can be used in subsequent criminal proceedings. Noble Lords will be aware that the powers under Schedule 7 are essential to help the police to tackle the threat posed by terrorism. I have listened carefully to the points made today about these powers and the concerns about how they might be used. One important check and balance for port and border powers is the statutory bar that we are introducing in Clause 16, which is also mirrored in Schedule 3. Under Schedule 7 there is a legal duty on those examined to give the examining officer any information that the officer requests. It is an offence under paragraph 18 to wilfully fail to comply with this duty. Unlike where someone has been arrested and has a right of silence, an examinee under Schedule 7 is compelled, under pain of prosecution, to answer questions put to him or her.

By introducing a statutory bar on the admissibility, as evidence at criminal trials, of any answers or information given orally in the course of a Schedule 7 examination—where the suspect will not have been arrested or cautioned—we are providing greater clarity and therefore comfort to the subjects of these examinations, and helping police to exercise their powers under Schedule 7. We are including a corresponding statutory bar in Schedule 3. The bar will provide that reassurance to examinees who might be unwilling to answer questions for fear of incriminating themselves that their oral answers or the information they provide will not be used against them.

The principle of excluding material from criminal proceedings on fairness grounds is reflected in Section 78 of the Police and Criminal Evidence Act 1984, which already provides the courts with the discretion to exclude such evidence if it would have an adverse effect on the fairness of proceedings. In the case of Beghal in 2015, the Supreme Court held that criminal courts would almost inevitably use Section 78 to exclude from criminal trials any answers or information given in Schedule 7 examinations. This clause puts the position beyond doubt and, in doing so, fulfils our commitment to the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson, to legislate in this way.

However, the statutory bar is not absolute—a point that the noble Lord, Lord Anderson, recognised, as did the Supreme Court in the Beghal case. There are three exceptions. First, the bar will not apply where the individual is charged with an offence under Schedule 7 of wilfully obstructing or failing to comply with an examination. Secondly, it will not apply where an individual is prosecuted for perjury. Finally, the bar will not apply for another offence where, in giving evidence in relation to that offence, a defendant makes a statement inconsistent with their oral response to questioning under Schedule 7—provided that the defendant is the party to adduce evidence relating to that information or asks a question relating to it.

Amendment 43 seeks to narrow the first of the three exceptions to that bar that I have just described. The amendment is intended to ensure that oral answers or information given in an examination are used as evidence against the person in criminal proceedings only where they are charged with wilfully obstructing or failing to comply with a duty arising during that particular examination, and not as evidence in proceedings for the obstruction of any earlier or subsequent examination.

We are of the view that this amendment is unnecessary, as what it seeks to provide for is already the case in practice. This is a consequence of the way the paragraph 18 offence is drafted, requiring as it does “wilful”—that is, “knowing”—obstruction or breach of an obligation. It is not possible for a person’s answer or information given in one examination to represent a knowing obstruction of, or non-compliance with, any previous or subsequent examination. At the time the answer or information is given, the person is beyond the point in time at which he or she can knowingly obstruct a past examination—nor can it be known that he or she will be subject to a future examination, so they cannot knowingly obstruct it. The current drafting of the Bill therefore secures the outcome that the noble Lords intend: namely, that answers given in an examination can be used in evidence only in a prosecution for wilful obstruction of that examination, and not any other examination. We believe that this is the right outcome.

Amendments 44 and 45 seek to remove the third exception to the statutory bar in its entirety. This is an important exception, which allows the prosecution to challenge a defendant where they have provided statements to the police in a Schedule 7 examination which are inconsistent with, or contradict, statements made later in criminal proceedings. To accept these amendments would give defendants in such situations the confidence to knowingly mislead the court in the case of another prosecution, as any contradictory statements they made during a Schedule 7 examination would not be admissible.

This third exception to the statutory bar reflects the legal exception that already exists in other legislation—for example, Section 360 of the Proceeds of Crime Act 2002 and, more recently, Section 22C of the Terrorism Act 2000, which was inserted by the Criminal Finances Act of 2017. It is not unique to terrorism legislation and, consequently, I see no case for removing the third exemption.

This clause introduces an unambiguous fair-trial safeguard. But, in putting the almost inevitable application of Section 78 of the Police and Criminal Evidence Act beyond doubt by means of this statutory bar, it is right that we reflect the legitimate exceptions that the Supreme Court has itself contemplated, in confirming that the statutory bar should apply other than,

“in proceedings under paragraph 18 of Schedule 7 or for an offence of which the gist is deliberately giving false information when questioned”.

I hope that that is a clear explanation of what the noble Lord asked and that he will be content to withdraw his amendment.

[Baroness Hamwee]

Before my noble friend responds, as I recall, the draft code of practice has provisions on giving information to people who are stopped as to their rights. I had some difficulty in opening and reading the draft code and so I have been able to do so only quickly, but the points that have been discussed require hot towels and quite a lot of time. In drafting the explanation of individuals’ rights, has the Home Office subjected, or might it subject, the explanation of how these provisions work to, say, the Plain English society, which comes to mind, or Citizens Advice —in other words, to people who are concerned with clear explanations?

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I am always conscious of the Plain English society when I say some of the things that I do during the passage of legislation.

[Baroness Hamwee]

No criticism is intended.

[Baroness Williams of Trafford]

Then I shall just agree.

--- Later in debate ---

[Baroness Williams of Trafford]

I shall read it with interest.

[Baroness Hamwee]

This has been an interesting debate. I do not think anyone other than the Minister has opposed the amendment, even if the routes to support it have been slightly different. The amendment is not about scrapping Prevent, nor is it about particular projects. I am sorry that the Minister felt the need to be so defensive. We have rightly been reminded of the breadth of what underlies terrorism by the noble Baroness, Lady Manningham-Buller. We might not always agree on the means, but of course we agree that the Government’s commitment to do all they can to protect the community and divert people from terrorism is a hugely important objective. The Government assert that a review would not lead to a different outcome. I do not know how one can assert that. I prefer to go down the route that we must not miss opportunities, which is in effect what the noble Baroness, Lady Barran, said, and that the strategy is too important not to do it as well as we can, as the noble Lord, Lord Anderson, said.

The Minister has, perhaps understandably at this point, not responded to the suggestion about extending very slightly the remit of the Independent Reviewer of Terrorism Legislation. I wonder whether after today she might be able to respond to that. It seems a very useful opportunity for the Government to consider it. As several noble Lords said, challenge can be useful. The more the Government oppose the proposition of a review, the more worried I become because I do not know what we do not know. I would prefer the reassurance of a review, which is in the circumstances quite a moderate proposal. We are only in Committee, and no doubt there will be some further discussions. I beg leave to withdraw the amendment.

Brexit: Arrangements for EU Citizens

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 5th November 2018 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord is absolutely right to point out that some people might come here and then leave and then come back again. Five years’ continuous residence in this country will entitle people to settled status, but they can apply for pre-settled status if they have been here for less than five years. On the point about getting settled status, leaving and then coming back again, I will have to get back to him because I do not know the answer.

[Baroness Hamwee (LD)]

My Lords, the original Answer refers to applications that will be needed, and those will not be entirely straightforward for everyone. I appreciate that pilots are going on at the moment, but people such as those mentioned by the noble Lord, Lord Harris of Haringey, might well not find it easy—indeed, find it a deterrence—facing the bureaucracy and dealing with the authority that this involves. Can the Minister confirm that the Home Office will consider sympathetically a different way of dealing with people in this group and the possibility of waiving the fee for them?

[Baroness Williams of Trafford]

My Lords, it is very important to outline that anybody who is vulnerable in any way—including victims of modern slavery, sex-trafficking or whatever it might be—will get the support that they need from the appropriate authorities when they arrive here. I cannot stand at the Dispatch Box and say that fees will be waived because, as far as I know, they will not be. However, I can say that people who need our support will get it when they arrive here in very vulnerable situations.

Counter-Terrorism and Border Security Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Baroness Williams of Trafford]

I have to say that there is always a chance of rehabilitation, given the deradicalisation programmes that go on, but there will always be an element of risk, I would suggest.

[Baroness Hamwee]

My Lords, the element of risk to which I was in fact addressing my remarks was the risk to the Government that the provisions may be challenged. I would have thought that the Government might like to think about my amendment, which has come from the JCHR, in that light. I do not think that the Minister has answered my question as to what harm there would be in a review provision. My proposal would be to include such a provision in order to bolster the application of what the Government are proposing. I think I had better just leave that with the noble Baroness. I beg leave to withdraw the amendment.

Counter-Terrorism and Border Security Bill

Debate between Baroness Williams of Trafford and Baroness Hamwee

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Baroness Hamwee]

The noble Baroness used the word “aimed”. I thought that “directed” may have meant “targeted” as distinct from “published”, which is a wider concept. Saying that it is “aimed” takes me, at any rate—and maybe other noble Lords—back to my same question. Of course, after today’s debate, I shall read what the noble Baroness has said. It is a difficult issue.

[Baroness Williams of Trafford]

My Lords, we are dealing with many difficult issues here. I thank the noble Baroness. We will, of course, have further discussions.

Amendment 1 would raise the threshold for commission of the offence from a single instance of the prohibited behaviour to a pattern of behaviour. Given the seriousness of this type of behaviour and the potential harm that can be caused, I cannot agree that the amendment is appropriate. I point out that there is no requirement for there to be a pattern of behaviour in the existing Section 12(1) offence. I therefore do not see a case for adopting a different approach for the new Section 12(1)(a) offence.

I also fear that the amendment would run into similar issues with definition and certainty to those which were raised in the House of Commons in relation to the three clicks element of Clause 3, and which ultimately led to the Government’s removing that provision. For example, how many instances constitute a pattern of behaviour and how far apart can they be?

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[Baroness Williams of Trafford]

As the noble Lord has just explained, it is about the whole context in which this happens. In any case, it will of course be the police and the Crown Prosecution Service that will determine those normal tests for prosecution, and of course ultimately the courts.

The noble Lord, Lord Marks, made the point about the viewer and the publisher. I had hoped that my words would explain that but they do not. I will take back what he says, and I am sure he will challenge me on it on Report. However, I hope the approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation has been in force since 2000 in relation to the existing Section 13 offence, which would already be likely to cover many of the circumstances where the item depicted in the image is situated in a public place. As I have said, it is when the item is not located in a public place that the gap begins.

After 18 years that formulation is well understood by the police and the courts. Proof of its effectiveness lies in the simple fact that during that period we have not seen prosecutions of any journalists or academics who have published reports or books containing such images. That should give us some comfort. Nor have we seen any complaints that such people have been inhibited or discouraged from pursuing their legitimate professional activities by the existence of the Section 13 offence. I have sympathy for the objective behind the amendment but I hope that, for the reasons given, noble Lords will agree that it is not necessary. I hope that having heard the arguments for the Section 12(1A) offence and my assurances about the scope of the offence and the effectiveness of its existing safeguards, the noble Baroness will be content to withdraw the amendment.

[Baroness Hamwee]

My Lords, I thank the Minister for her response. This is not intended as a criticism, but in introducing her response the numbering of the amendments went a little awry. I suspect that her briefing was written before the Marshalled List was put together. I say that only for people who may be reading Hansard after today.

The noble Lord, Lord Carlile, made the point about consultation that I made in rather a broader way at the beginning of this afternoon’s proceedings: people who have knowledge of particular circumstances have things to contribute to the legislation that we end up with. I agree with his point about consultation. The Minister says she will deal with Northern Ireland under the next grouping. I hope that consultation, as it is considered under the grouping, can go wider than the PSNI and the prosecution service, which were specifically mentioned, because more people will have things to contribute than just those two organisations. The noble Lord makes an important point.

He used the example of scenes of execution. That is not what the amendments here are aimed at but it makes me wonder whether there is something about intention in all this that we might explore afterwards. A scene of execution is a very extreme example—much more so, I think, than a freedom fighter flag.

The Minister used the term “updating”. I wonder whether what we are talking about here is more about prompting an investigation than creating an offence in itself. I can see that one might want to pursue the sort of situations that she has referred to but, like my noble friend Lord Paddick, I think the words “in such a way” and “circumstances” are very wide.

Pretty much the Minister’s final point was that it would be for the police and the CPS to determine. When I moved my amendment, I said that I really do not want to find us continually relying on the public interest test; we ought to be able to do better than that. My noble friend Lord Campbell, who came into this debate and heard the Minister’s comment, did not hear my introduction but I absolutely agree with him that it is for the courts to determine. One should not be looking at the public interest test as a way of getting out of a difficult situation.

Of course, at this point I shall withdraw the amendment, but I am sure we will look again at the detail of this situation. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

I was not so much asking as supporting the noble Lord, Lord Carlile, in his earlier suggestion that there should be consultation regarding works of art and works of historic value in Northern Ireland. I simply referred to the amendment suggesting that those organisations may not be the totality of those who would have views on the points he made.

[Baroness Williams of Trafford]

After the debate, I shall go back and check, but those are the ones we have consulted on this aspect.

Of course, this will be a discretionary police power like any other, and its application in Northern Ireland will be an operational matter for the PSNI, but we will consult and update those partners further, as necessary, prior to the provision coming into force.

The change that Clause 2(4) makes to Section 13 of the 2000 Act is to confer a power on the police to seize flags or other articles associated with a proscribed terrorist organisation as evidence of an offence under Section 13(1). This is intended to ensure that the police and CPS have the best evidence to pursue a prosecution.

Of course, the police already have powers to seize evidence following an arrest, but in the context of policing a march or demonstration, it might not always be an option if the legal tests in the PACE Act 1984 for making an arrest are not satisfied, or arrest may not be the appropriate policing response at that time.

In such a case, if the police wish to take action against a person displaying such a flag, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.

I think I may have been given papers which are forcing me to repeat what I just said.

Immigration

Debate between Baroness Williams of Trafford and Baroness Hamwee

Thursday 25th October 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I too thank the noble Baroness for repeating the Statement. In the interests of time, I have edited the questions that I wish to ask so as not to repeat those of the noble Lord, Lord Rosser, which were all very good and pertinent.

The Minister tells us that this is in effect an apology to those affected. Will the Home Secretary contact the individuals affected to give them a personal apology? That seems the proper thing to do, because the events that we have heard about must have been quite devastating for some of those affected. Instructions have been given that officials must not seek DNA evidence on a mandatory basis. Can we be assured that “mandatory” will be given quite a wide meaning? If I were told that I was unlikely to be believed if I did not provide DNA evidence, I would regard that as mandatory, or something very close to it. A new task force has been set up, and we have heard about the external oversight, but is the task force comprised of Home Office officials? Is it they who will give advice and support, and are those affected going to be told that that advice and support will be available to them?

On reimbursement, the words in the Statement are, “looking to reimburse”. I am not suggesting that an attempt has been made to find weasel words—it is a fairly common way of saying “we will reimburse”—but I would like to hear that this is a little more than a hope, and without requiring the release of the claim, which I think was the point touched on by the noble Lord, Lord Rosser.

During the Joint Committee on Human Rights inquiry into what happened in the case of the Windrush generation—I am a member of that committee—we were concerned to know what action was taken when errors were discovered, with regard to individuals. That is perhaps another way of asking what sort of internal audit is in place and what steps are taken when it is found that mistakes have been made by individual officials. In saying that, I am not seeking to blame officials: I believe that those who operate the system seek to apply what they understand to be Home Office policy, sometimes expressed, sometimes implied.

The Statement refers to,

“how to address the root causes”,

of the problem. The “committed people”—I use the Home Secretary’s term—who operate the system will naturally seek to achieve what the politicians are aiming for: they take the detail and the tone from them. I think that happened in the case of the Windrush generation, and the hostile or compliant environment is not, to use the words of the Statement again,

“fit for the modern world”.

That is why the Liberal Democrats have recently agreed as our policy that processing immigration and asylum applications should be taken away from the Home Office, with a new dedicated unit set up. This scandal is an example of why it is important to ignore political pressure and work fairly and lawfully in processing applications.

[Baroness Williams of Trafford]

I thank the noble Lord and the noble Baroness for their questions. Any that I do not thoroughly answer today, I will follow up afterwards.

The noble Lord, Lord Rosser, asked whether a full review would be published, or a partial one. The answer is yes to a full review. The noble Lord will of course appreciate that names below senior civil servant rank have been redacted. He asked whether evidence had been deleted. That is precisely one of the things that the Home Secretary has asked officials to urgently establish. He also asked whether the three schemes are different. The three cohorts to which I and my right honourable friend the Home Secretary referred are the Gurkhas, the Afghans and the cases in Operation Fugal, which are family migration cases in the main.

He also asked whether the Home Office acted illegally and what were the consequences. We have accepted, as my right honourable friend the Home Secretary accepted today, that we should not have required DNA. Obviously, the consequences for individuals will vary according to individual circumstances. In answer to him and to the noble Baroness, Lady Hamwee, we will be looking to reimburse individuals who suffered loss because we required DNA. The noble Lord asked about governance and accountability. My right honourable friend the Home Secretary made it clear that he is going to review the structures and processes in the immigration system.

The noble Baroness, Lady Hamwee, asked whether we had reached out to those affected. As I set out in the Statement, my right honourable friend the Home Secretary has set up a task force within UKVI to review and conclude all outstanding Operation Fugal cases. Our intention is to complete this work by the end of October wherever possible. However of course some cases will take longer because of outstanding criminal proceedings, or where we have required or requested further information to help us make a decision. We have set up a telephone hotline to enable those who need to to speak directly to members of the task force. The hotline will not be a freephone number, but we will quickly establish an individual’s contact details and basic information and call them back at our expense. The cases that officials have identified to date which were refused solely because of, or with reference to, non-provision of DNA will be reviewed by the end of October, and, where it is considered that the application still falls to be refused on credibility grounds, a new decision letter will be issued making clear the grounds for refusal.

The noble Baroness asked whether everyone who had to pay for one—I presume that she means a DNA test—will be compensated. As I have said, we are looking to ensure that anyone who suffered financial loss will be reimbursed. My right honourable friend the Home Secretary will be providing more detail on how this will be done as soon as possible. She asked whether “mandatory” would be interpreted widely. We will make clear through guidance that applicants can provide a range of evidence to demonstrate relationships. If people wish to, they can volunteer DNA evidence, and sometimes they may want to do that, but it will not be mandated: they will not be required to. She also asked whether the task force would be reviewing guidance. The task force will be operationally focused, and separately the Home Secretary has asked officials to review all relevant guidance and make sure that it is correct and up to date. As she will have heard in the Statement, some of it already has been. She asked how many people were in the task force. Did she not? Well, I will tell her. About 40 people are involved in the task force, and that will be adjusted according to need. They will be reviewing cases and responding to hotline queries.

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Hamwee

Report stage (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, we welcome the Government’s significant movement towards the use of the treaty procedure, which we and, I believe, the Labour Benches argued for at the previous stage. I was concerned that the amendment was incomplete, and the Minister has explained why her amendment refers to “laying” the treaty, but not the other provisions of Section 20 and several subsequent sections of the Constitutional Reform and Governance Act.

As the Minister has told the House, it is quite a complicated and potentially long drawn-out procedure. I accept that, but it is long drawn-out because it is designed to give Parliament a proper opportunity to have input into the final product of the treaty, with various stages for its consideration, ending up in ratification. The Minister, in arguing on the first group of amendments, stressed the importance of the procedure. She has just said that the Government might want to make a designation before ratification. It seems to me that this nullifies the impact of the procedure process, and assumes that Parliament will ratify—in other words, will vote as the Government tell it to, which is precisely the arrangement we do not want in place.

The Minister has, however, just talked about the treaty not coming into force until ratification—she is nodding at that, for which I am grateful. I wonder whether she would be prepared to have a discussion—she has been prepared for lots of discussions on the Bill already, for which we are grateful—about an amendment we might table at Third Reading to tidy this up, encapsulating what she has just said to the House about delaying the process until the parliamentary process has been completed. I had better move this amendment, and then we can debate it.

[Baroness Williams of Trafford]

My Lords, I am sorry that I have not been very clear. I am very happy, should the noble Baroness wish to withdraw Amendment 5 and accept Amendment 4, to have a discussion before Third Reading—we have discussed our way through this Bill—but in the meantime I ask her to withdraw Amendment 5.

[Baroness Hamwee]

Of course I am happy to do that. I am sorry, I thought that was implied. I do not wish any more exercise on noble Lords than we need to have during the course of this afternoon. I look forward to that discussion and I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Amendment 7 is an amendment to Clause 5, which deals with the contents of an order. If my amendment were agreed to, subsection (2) would read:

“The judge must not specify or describe in the order electronic data that … consists of or includes excepted electronic data”.


The clause would not include the phrase,

“the judge has reasonable grounds for believing”,

includes excepted data. That may sound as if I am dancing on the head of a pin but I think it is quite an important issue. In Committee I explained that I was seeking a formula that was objective. The Minister responded by referring to the phrase “reasonable grounds” being used elsewhere in the Bill. Indeed, the clauses that she mentioned, Clauses 1 and 7, include that phrase but they are not about an order; they are about the basis for making an application, which I suggest is a rather different matter.

I accept that, as she said, the contents of data may not be known until they are produced, but without our amendment, or some such amendment, the judge could make an order that it later turned out did include excepted data. I was looking for an objectively based exception because how otherwise do you appeal? Would you be appealing against the judge’s reasonableness? That would not be the same as appealing on the basis that the data was excepted. I would find it very uncomfortable to have to appeal against whether or not a judge was reasonable. What really should be at issue is the character of the data, and we are not satisfied that the Bill really addresses that. I beg to move.

[Baroness Williams of Trafford]

I thank the noble Baroness for moving her amendment and for raising this point again. Perhaps my response in Committee was not persuasive enough for her.

The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. “Excepted electronic data” means electronic data that is either an item subject to legal privilege or a confidential personal record. The Government do not want to see overseas production orders being used to obtain such information, nor do we expect our officers to target it.

First, Clause 1(3) sets out that an appropriate officer must not apply for an overseas production order in respect of electronic data where that officer has reasonable grounds for believing that it consists of excepted electronic data. Clause 5(2) includes another one of these safeguards: a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is important given that there is no guarantee, at the time of considering an application, that either the judge or the applicant can be certain if the data sought will, in fact, contain excepted data.

Let me put it in this context: say the email records of criminal X were requested from June in a certain year because law enforcement agencies believed they had been communicating for criminal purposes with someone else. It would be impossible for either the law enforcement agency or the judge to know for certain that within those emails, there also happened to be correspondence between criminal X and their doctor.

I understand that the noble Baroness’s concerns in Committee were about the objectivity of the judge in allowing an order including potentially excepted data. The Government believe that the term “reasonable grounds for believing” gets us as close to objectivity as practicable. If a judge has “reasonable grounds for believing” that excepted data is included in the data sought in an application, they will not specify that excepted data when making the order. But if they do not have “reasonable grounds for believing”, as long as the other criteria are satisfied, the judge can make the order.

Indeed, should the respondent in receipt of an order know that it includes excepted data, Clause 6(4)(b) ensures that, despite the terms of the order, they are not required to produce that data. The noble Baroness asked in Committee how, if electronic data was within an order, it could be varied or revoked. The fact that the respondent is under no obligation to produce the excepted data removes any need for the respondent to apply to vary or revoke the order. To the extent that the order includes excepted data, it has no effect.

If we return briefly to criminal X, if a judge has allowed an order to be served on a communication service provider where the judge did not know that the emails requested included medical records, but the CSP did, that CSP would not be required to produce those emails. If the CSP provided the emails, knowingly or by accident, the data would then be sifted out by the appropriate body during the sifting exercise. It is therefore reasonable and proportionate for the Bill to retain the term “reasonable grounds for believing”, and it is a sensible reflection of what would happen in practice with overseas production orders.

I hope that, with that explanation, the noble Baroness will feel happy to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am grateful to the Minister. Much of what we said was what we rehearsed in Committee. I have been looking to see whether Clause 6, which deals with the effect of the order, would meet my point. It takes us straight to the provision about the order having effect despite any restriction on the disclosure of information, which we found a difficult provision when we discussed it in Committee.

I will not tax the House by continuing with this at this stage, but I hope that the Minister will understand that I was not simply playing with words; there is real concern that the way that the Bill has been framed raises questions which people may have to grapple with in practice. I hope that they do not have too hard a time. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, the noble Baroness has suggested amendments stipulating that court rules must make specific provision for certain things. Amendment 10 prescribes that court rules must be made relating to service of notice on a data controller, a data subject or where the application relates to journalistic data. I hope that I have already set out how we intend rules to include notice provisions in respect of the respondent and anyone else affected by an order. The rules already made by the Criminal Procedure Rule Committee in England and Wales for applications for production orders under Schedule 1 to the Police and Criminal Evidence Act 1984, and under other legislation, already include provision for the service of notice of applications, and additional special requirements where what is sought is the product of journalism. I refer the House to Part 47 of the Criminal Procedure Rules. The Criminal Procedure Rule Committee has already settled draft rules that, if this Bill passes, would be in terms corresponding with those existing rules.

We expect the court rules to include the same provisions as are currently in place for domestic orders. They would provide that a court must not determine any application for an overseas production order in the absence of the respondent, or other person affected, except in the following circumstances. First, the person has at least two days in which to make representations. Secondly, the court is satisfied that the applicant cannot identify or contact the person. Thirdly, the court is satisfied that it would prejudice the investigation if that person were to be present. Fourthly, the court is satisfied that it would prejudice the investigation to adjourn or postpone the application so as to allow the person to attend. Fifthly, the person has waived the opportunity to attend. In the case of an application which would require the production of confidential journalistic material, the court must not determine the application in the absence of the respondent until they have waived the opportunity to attend. I hope that that satisfies the noble Baroness on Amendments 9 and 10.

[Baroness Hamwee]

My Lords, we have learned about the draft of the new rules and I am grateful for that. It is obviously difficult to take them in simply by listening and not reading them, although I noted the wording that one of the exceptions was that the court was satisfied that the person concerned—I am not sure what the technical term would be—“cannot” contact somebody. That is not the same as “will not” contact: anybody “can” contact someone, so I suspect that there might be a little more reflection on that.

Throughout the Bill’s progress, we have been told that the Government “intend” something or “expect” something. There comes a point when one hears that rather too often not to want to see something on the face of the Bill when it is material to the Bill. However, I am glad to have heard that progress has been made with regard to the rules and I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I think it must be lucky 13 for the Minister. However, I have a question. It may be that I did not properly follow the latter part of her explanation but I come back to “normal speak”. The amendment says that the references,

“include proceedings for the making, variation or revocation of an order”.

Is “include” here a synonym for “mean”? Do we read it as “references mean”? I am sorry to throw that at her at this point. Perhaps I should talk inconsequentially for a moment or two until she receives information via semaphore. The term does suggest that something else might be within the references. I think the Minister is about to get a response to that question.

[Baroness Williams of Trafford]

The answer is yes.

[Baroness Hamwee]

With the leave of the House, I suggest that the Government return to this tiny thing before the next stage.

Youth Crime: London

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 22nd October 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I declare an interest as a trustee of Safer London, as mentioned by the Minister. Does she recognise what is behind the following tweet from a young person today:

“We’re desperate to see police patrols. Friendly neighbourhood officers who know the community. All we now get is aggressive cops jumping out of bully vans”?


Does the Minister realise the impact of the loss of community policing and local intelligence both on young people’s fear, which often leads to their carrying knives, and on stop and search?

[Baroness Williams of Trafford]

My Lords, I pay tribute to the work that the police do. Of course, the PCC decides how to allocate funding to the various types of policing mentioned by the noble Baroness. I also point out the initiative to reduce moped crime, which noble Lords were so concerned about. There has been a 32.6% fall in that type of crime. That is not to undermine exactly what noble Lords are saying, which is that certain types of crime are increasing, but the police are working to reduce crime in local areas in the way that it presents itself.

Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 16th October 2018 Lords Chamber

[Baroness Hamwee]

Is the “operational community” operational in the children’s sector or is it police operational?

[Baroness Williams of Trafford]

I understand that it would be police operational, but I will clarify for the noble Baroness whether operators in the children’s sector were also involved.

The updates to the CHIS code of practice in 2014 and 2017 were subject to formal public consultation, with no concerns raised about either the use of juveniles as CHISs or the safeguards that apply. But this provision has been in place for 18 years and it has probably had more scrutiny in the last two months than it ever had during those 18 years—and that is a good thing.

The noble Baroness, Lady Hamwee, also outlined an absolutely harrowing case study. I understand that those issues, if we are talking about the same ones, are being considered by the undercover police inquiry and that the Home Office is co-operating fully with the inquiry. We have responded to requests for information and have given the inquiry access to our files and records.

The noble and learned Lord, Lord Judge, raised the issue of further oversight. I think that I went through that point when we last debated this. It would not be a simple matter; it would be one for primary legislation. Nevertheless, I take his point. I hope he feels that, under the leadership of Governments of different political colours, the safeguards have been enhanced and are robust, and that there is strong and effective oversight in the form of Lord Justice Fulford.

The noble Lord, Lord Kennedy, talked about the public consultations on the provision. It was subject to statutory public consultations—most recently in 2017-18—and views from all were absolutely welcome. It is not incompatible with existing legislation—but, as I have just said, this House has given it more scrutiny than any other.

I have two more scraps of paper. The noble Lord, Lord Paddick, asked about the authorising officer. The authorising officer should, where possible, be responsible for completing subsequent renewals and any other related security or welfare issue—but I do not think that that answers his question. I now know what that question was, and the other scrap does not answer it, either, so I will get back to him on that specific point.

This House has given this really serious issue the time, scrutiny and questioning that it deserves, after 18 years of it passing largely unnoticed by either House of Parliament. I thank the noble Lord, Lord Haskel, for raising this in the first instance and the noble Lord, Lord Paddick, for raising it today.

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Hamwee

Committee: 2nd sitting (Hansard): House of Lords
Monday 10th September 2018 Grand Committee

[Baroness Williams of Trafford]

The current Facebook case is a good case in point. There is no requirement for it to provide the information because of its terms, conditions and processes. I am sure that this would ensure that it had to comply with the process, because we are introducing this agreement with the US which places an obligation on CSPs to comply—whereas at this point in time they do not have to.

[Baroness Hamwee]

My Lords, perhaps when I read all this I will understand it a little better than I have while listening to it. It is not how I had approached the Bill. As it has been described, there is an element of optionality which I had not expected.

We will want to ask our colleagues who practise in this area to comment on how contempt of court is dealt with. I have just turned up the notes made by my noble friend Lord Thomas of Gresford, who had a look at the Bill before Second Reading. He wrote—I assume this is rhetorical—“Is contempt of court a realistic and effective sanction in respect of international bodies?” Of course we will discuss this, as the Minister said, before Report. This is certainly going to be a matter on which we will want to put down another amendment for Report in order to tidy up, as far as we can, in the Bill, or to get on the record in Hansard, the quite unusual situation which we are discussing.

[Baroness Williams of Trafford]

I do not usually intervene on noble Lords but, if I may, the noble Baroness is absolutely correct when she talks about optionality. There is now optionality. There is MLA, which by its very nature is a longer process—and this is the option for a much speedier access to data requirement.

[Baroness Hamwee]

Indeed it is optional, but one expects there to be an effective sanction. In this context, contempt of court really amounts to little more than a slap on the wrist, with probably nothing much to follow.

[Baroness Williams of Trafford]

But of course—I am sorry to interrupt the noble Baroness again—there is also reputational damage, as for example with Facebook.

[Baroness Hamwee]

Yes, I take that point. I had wondered whether I should have apologised at the beginning of this debate that I had so little to say, in comparison with the stacks of paper which officials behind the Minister have in front of them. However, perhaps we have given this more of an airing than I expected. I look forward to discussing it further and beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Clause 6(4)(c) provides that the requirements in the Bill have effect,

“in spite of any restriction on the disclosure of information (however imposed)”.

This amendment seeks to understand what the impact is of that. I am not of course impugning what the Minister said about compliance with human rights and so on, but can we be sure, given that exception, about how that will fit in with legal and human rights protections? What if there is a clash with the local laws or the terms of the co-operation agreement? Given our previous discussion, I wonder whether, if there were to be such a restriction, this route would be not taken at all. Specifically, does this subsection allow for Clause 3, which is about excepted data, to be overridden? That would be concerning. I beg to move.

[Baroness Williams of Trafford]

I thank the noble Baroness for her amendment, which gives me the opportunity to set out to the Committee the intention of Clause 6(4)(c). First, let me stress that the aim of an overseas production order is to provide law enforcement officers and prosecutors with the ability to apply to the court to acquire electronic data that can be used in proceedings or an investigation into serious crime. The effects of such an order are outlined in Clause 6.

The Government accept that a company may have obligations to the customers who use its services. The effect of subsection (4)(c) is to make it clear that, in spite of those obligations or any that a company may owe to its shareholders, for example, it is obliged to comply with the requirement to give effect to an overseas production order. Of course, there will be duties on those who are served an order to adhere to data protection obligations, but the Government are satisfied that the rights and duties that would be imposed by the provisions of the Bill are compliant with data protection legislation. On receipt of any evidence, for example, the appropriate officer would be required to handle such data in accordance with the Data Protection Act 2018—as they would any other data, including that sought under an existing production order issued under PACE for data held in the UK for the purpose of investigating or prosecuting serious crime.

Any international arrangement that is concluded will be premised on a requirement that the two contracting countries will make compliance possible. The purpose of this clause is therefore to ensure that the recipients of a disclosure can comply with it even where there is conflict in the law of the UK. For example, where the recipient owes a duty of confidence in respect of a third party, Clause 6(4)(c) will allow the recipient to produce the data without breeching that duty. This approach reflects the domestic framework used for making and granting production orders under Schedule 5 to the Terrorism Act 2000 and Section 348(4) of the Proceeds of Crime Act. A judge cannot issue an overseas production order unless it meets the criteria set out in the Bill. The provision in Clause 6(4) of the Bill is only about ensuring that a lawful order has absolute effect. It does not provide that the courts can sidestep other statutory provisions such as the Data Protection Act 2018 when making an overseas production order.

The noble Baroness asked about safeguards. The Bill contains robust safeguards governing the application and issuing of an overseas production order. The judge must be satisfied that there are reasonable grounds for believing that the data sought is likely to be of substantial value to the investigation, and that it would be in the public interest for this data to be produced before an order is granted. The judge is also required to exercise the power to consider and grant orders compatible with human rights obligations, including privacy.

These orders are intended to be used where law enforcement officers and prosecutors are investigating terrorism or have reasonable grounds to believe that an indictable offence has been committed, or proceedings in respect of an offence have been instituted. The Bill does not provide access to any data that is not already available through mutual legal assistance. It simply ensures that the data can be obtained more quickly.

The noble Baroness, Lady Hamwee, talked about clashes with local laws. The point of an agreement is that an international arrangement removes those barriers to compliance, as I have already said, so it will be a prerequisite for a country to ensure that compliance is possible. The noble Baroness also asked whether this paragraph allows for Clause 3 on “excepted data” to be set aside. Clause 6(4)(c) does provide that an overseas production order made by the court has effect in spite of any restrictions. A court will not make an order in respect of excepted data as the Bill provides that it cannot—so Clause 6(4)(c) does not allow for orders to be made in respect of excepted data.

The noble Baroness looks quite confused, but I hope that I have satisfied her and persuaded her that her amendment can be withdrawn.

[Baroness Hamwee]

My Lords, this is another occasion when I shall have to read the reply carefully. But, with regard to the relationship between Clause 6(4)(c) and Clause 3, can I be clear that the Minister said that it does not allow for Clause 3 provisions to be set aside? I see the Minister is nodding. I thank her for that and, as I said, I will read the response. I beg leave, for the moment, to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

I take the noble Lord’s point. I imagine that all of that would be laid out in the agreement, given that it would be set out, but I can certainly have a think about that. Perhaps we can talk about it when we meet.

[Baroness Hamwee]

My Lords, I am grateful for the long explanation. I had correctly anticipated what the Minister would say about non-disclosure and the impact it might have on an operation. Perhaps I may pursue what happens if a customer asks, “Is there a non-disclosure order in force?” When receiving that inquiry should the answer be, “No comment”, which implies yes? What should it be and how is this dealt with in the real world?

[Baroness Williams of Trafford]

My guess—I am sure that the Box will correct me if I am wrong—is that if a non-disclosure order is in train then nobody can comment on it, so whether one was in train or not it would be a “no comment” procedure anyway because there would otherwise be a breach.

[Baroness Hamwee]

I thank the Minister. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

I thank the noble Baroness and the noble Lord for their comments. The noble Lord, Lord Rosser, made a valid point about consistency. The aim of the Bill is to strike a balance between the operational need to have flexibility for serving such an order and the legal certainty of the obligations that are placed on those who are subject to an order. There is a similarity with PACE, which also provides a three-month time limit from the date an order is issued for an entry and search to be completed. The Government do resist the amendment—but, given what the noble Lord pointed out, I would be open to discussing this ahead of Report.

On Amendment 36, the notice provisions under Clause 14 have been drafted to allow for flexibility, and reflect the complexity surrounding the service of notices on those based overseas. A “person” is taken to mean an individual or a body corporate. In addition, the Government have been careful to construct the clauses in such a way as to avoid persons hiding behind corporate identities and structures, where they may be based or registered elsewhere in one place but operate out of another country. If a person is located outside the UK and the other conditions for granting a production order are fulfilled, a production order can be served. Adding terminology such as “resident” will confuse what is otherwise a straightforward matter of being able to serve on those persons, legal or otherwise, based outside the UK.

On Amendment 37, Clause 14(3)(a) seeks to reflect the model in the Investigatory Powers Act 2016 where the availability of a method of service is not based solely on the establishment of a business pursuant to any domestic or foreign law but instead should depend on where a person actually conducts their business activities. Amendment 37 would narrow the availability of the method of service described in Clause 14(3)(a) in cases where the person is outside the UK but has no principal office here. The Bill currently provides that that service could be effected by delivering the notice,

“to any place in the United Kingdom where the person carries on business or conducts activities”.

The amendment would restrict this to places where the person carries on business. I hope that that is not too complicated. I think that the restriction would be unhelpful. Perhaps it would help if I explained what is intended by “conducts activities”—which is the very question the noble Baroness asked.

The Government intend that “activities” in this sense would mean the corporate activities or business activities according to a common interpretation of the provision. The Government have been careful to construct the clauses in such a way as to avoid persons hiding behind corporate entities and structures, where they may be based or registered elsewhere in one place but operate out of another country. If a person is located outside the UK and the other conditions for granting a production order are made, a production order can be served. Limiting the service to places where business is conducted will introduce complexity where it is not required. However, if there is more we can do to make clear what is intended by “conducts activities”, I am happy to consider whether it is possible to clarify these terms further in the Explanatory Notes.

[Baroness Hamwee]

I am grateful for that. Reading the clause, it occurs to me that one could avoid being served by moving around from place to place, whether “carrying on business” or “conducting activities”, because at the point of service you might no longer be conducting activities in that place. The terminology is in the present tense. Has thought been given—I am sure it has, because officials are always way ahead of me—to whether that is an issue?

[Baroness Williams of Trafford]

As I said, if the noble Baroness is confused, that is an indication to me to look at what the Explanatory Notes say—because if she is confused by it, others will be, too.

[Baroness Hamwee]

I am a bit confused, but that last point is not something to answer now. It is about whether we are talking about the present or whether, having been at an address in, say, Newcastle at one point, and you have moved to Liverpool, there can be service in Newcastle.

--- Later in debate ---

[Baroness Williams of Trafford]

Yes, I am.

[Baroness Hamwee]

My Lords, as the Minister is responding, it seems that this falls into a similar category to a point we raised last week about how one balances the different public interests involved. I think the Minister is saying that there is a public interest in the application of the Data Protection Act and the GDPR, which takes us back to the clause about assessing public interest. The Minister is nodding at that. Perhaps, before Report, we should go back and look at how that might apply in this context as well.

Immigration Policy: Children and Parents

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 10th September 2018 Lords Chamber

[Baroness Williams of Trafford]

I am afraid that I cannot provide the noble Lord with that exact detail, as it is not available. However, we have done dip sampling in the cases of 84 foreign national offenders from July 2017 to July 2018, and two family separations were detected. It is not clear whether they were temporary or whether we were seeking to remove one parent from the UK.

[Baroness Hamwee (LD)]

My Lords, the noble Baroness referred to the best interests of the child, no doubt reminding us of Section 55 of the Borders, Citizenship and Immigration Act and the Convention on the Rights of the Child. What records are kept of the factors considered in applying Section 55 and the convention when the child is separated from his or her parents? Are the records available to the parent and the representative of the child, despite the exception regarding immigration in the recent Data Protection Act?

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Hamwee

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Grand Committee

[Baroness Hamwee (LD)]

My Lords, I am speaking for these well-populated Benches. It would be right to start by saying that the number of amendments that we have tabled does not indicate outright opposition to the Bill—the Minister is grinning. There are serious issues to be considered, particularly the human rights aspects of the proposals in the Bill, and we welcome in particular the judicial element which it provides. I anticipate that the response to many of our amendments will be that we are saying rather inelegantly what the Government in fact propose, or something very like it, and that we do not need to worry. We feel it important to have on the record, at the very least, how the Government will operate the Bill. Some things are not clear; I am not suggesting that what is in the Government’s mind is in any way malign, but things should be on the record at least and—better—in clear terms in legislation, whether primary or secondary. I wanted to make those points before speaking to the first of the amendments, which is Amendment 1, grouped with Amendments 2 and 40.

This grouping is about transparency. There is somebody else in the Grand Committee who can speak to this matter with far more experience than me, but I think it unusual for a court to be asked to make an order without hearing both sides of a case. We want to hear the reason for this procedure. I do not believe it can just be speed, because we can have procedures for urgent situations as an exception, as we have in other legislation; I do not believe that the requirements will be urgent in every case—we cannot know that, but it is unlikely. Amendment 1 therefore provides for a notice of application to be given to those affected: the data controller or the data subject.

Amendment 40 would import definitions from the Data Protection Act. I want to get my defence in first: the Data Protection Act cross-references other parts of the Bill, so the amendment is technically flawed, but we are only probing and it was the summer and I bottled out of substantial drafting. A data controller or subject can apply to vary or revoke an order, but that would be after the event. It is important that they be able to defend their interests initially. There is a discretion in respect of Clause 3. We will come to confidential personal records later in the Committee, which might add to the arguments for providing for a notice in Clause 1. We think that significant protections are required. We will come later to the issue of balance and how the court will weigh the interests.

We also propose in Amendment 2 the appointment—or the possibility of an appointment; it is discretionary—of an independent adviser in connection with assessing whether the requirements for the order have been met. I use this opportunity to ask the Minister to explain how this not very usual procedure will operate. I beg to move.

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

I thank the noble Baroness for her introduction and I am very glad that the number of amendments does not reflect the level of controversy of the Bill. To address her first point, I say that the Bill does not preclude a judge from being able to require that notice be given to anyone affected by an order pursuant to court rules. Court rules will provide the judge with the ability to require that notice be served on anyone affected by the order, which is the case at the moment under court rules dealing with domestic production orders. This means that a data controller or a data subject may be given notice of an application, but while in principle any person affected by an order should be given notice, there will be cases where it is not appropriate because the giving of a notice to a particular person could prejudice the investigation to which the order pertains: for example, where a notice to a data subject might tip off a suspect where law enforcement agencies are seeking data for the prosecution or investigation of a serious crime.

I thank the noble Baroness for giving me the opportunity to set this out in greater detail. However, given that court rules provide a judge with the power to consider notice being given, I suggest that the amendment is unnecessary. She knew that I was going to say that.

With respect to Amendment 2, the court already has the applicant, who has a duty to assist the court, so it is an established principle that an applicant seeking an order without giving prior notice to the person on whom the order is to be served or to whom it relates is obliged to provide full and frank disclosure to the court. This includes disclosure of relevant legal principles and facts, even if they are not in the applicant’s favour. The principle therefore already ensures that the information put before the court must be balanced.

I stress that the Bill reflects the existing position in relation to production orders that can be served on a company based in the UK, and the court will be dealing with the same considerations where an existing production order is sought. Such domestic orders apply the same legal considerations without the need for an independent adviser, and I do not see why we should deviate from that existing practice simply because an order can be served on an entity based elsewhere.

The third amendment aims to define the terms “data controller” and “data subject” referenced in the amendments to Clause 1. Given that we do not believe that the Bill should be amended in the way suggested by the noble Baroness, it follows that there is no need to include definitions of data controller and data subject in Clause 17. I hope that in the light of those clarifications, the noble Baroness will feel free to withdraw her amendment.

[Baroness Hamwee]

I do not challenge the applicant’s duty to assist the court, but there is no opportunity for challenge at the initial stage, which is what I am concerned about. That feeds into my question: if a no-notice procedure will, as the Minister suggested, not be the norm and may be the exception, why does the Bill not provide that a judge may, in exceptional circumstances, make the order on a no-notice application? It seems to me that that would reflect what the Minister has said in explaining how this would operate. I do not imagine she will have a direct answer to that at this moment, but it might be helpful if we could discuss it further. The Minister has already invited us to discuss the Bill between today and the next day in Committee, so perhaps we can talk further about this issue. The Bill launches us straight into the no-notice procedure and, whatever the court rules may say, I suggest that people will look at the Act first. Having said that, I beg leave to withdraw Amendment 1.

--- Later in debate ---

[Baroness Hamwee]

The noble Lord, Lord Kennedy, may be thinking, as I am, that that begs another question. Clearly, the Minister’s reply will require and deserve reading. As she started, I thought that I should thank her for giving me some material for an amendment on Report; that may still apply. She talked about circumstances which depend on the relationship with international partners. It is the interface between politics and the law that needs resolving here. I am not sure that I can suggest anything now, but we will certainly think about it.

On standard clauses, a question was asked by the chair of the Joint Committee on Human Rights, of which I am a member—although the term there was “model clauses”. During the recess, she wrote to the Home Secretary raising a number of questions about the Bill and the Minister for Security responded, but I cannot immediately find a direct answer to that. This is linked with our earlier discussions about human rights. If there are model clauses which deal particularly with human rights, the reassurance given would be considerable.

The amendment regarding the affirmative procedure for regulations was to my mind an alternative to dealing with the arrangements by way of a treaty.

[Baroness Williams of Trafford]

I do not usually intervene, but the noble Baroness’s words are worthy of reflection before Report. Let us have another discussion. It sounds like we can have Committee stage in the form of a meeting shortly.

[Baroness Hamwee]

Of course, I am grateful for that. I was going to say that we have the delegated powers memorandum, but we do not yet have the report of the Delegated Powers and Regulatory Reform Committee, which may or may not have something to say on this. We will have another discussion when we have had an opportunity to digest the Minister’s comments on these amendments. I beg leave to withdraw Amendment 5.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my noble friend and I put our names to the amendment from the noble Lord, Lord Rosser—strictly speaking, we put down the same amendment, but the noble Lord got there first. I shall add just this question to his comments: would it not be a different way of dealing with this to allow for specific application in the case of terrorism investigations? That might be more satisfactory from every angle.

Our Amendment 13 deals with Clause 3(7)(c), on the counselling or assistance, or a record of it, that is excepted. It is only when the counselling is given by the entities listed that it is excepted. Why does counselling given by someone who is not within paragraphs (i) to (iii) not come within the clause? To put it another way, who is the Home Office seeking to exclude? If the individual was “counselled” by a friend who was a person of interest to the security services, one could understand that just claiming that the record was of counselling would not be sufficient. However, Clause 3(8) defines a confidential personal record by reference to obligations of confidence and restrictions on disclosure, and I would have thought that adequate.

Amendment 20, to Clause 5, is about the contents of the order. Clause 5(2) provides that:

“The judge must not specify … data that the judge has reasonable grounds for believing … includes excepted electronic data”.


I wondered whether this meant that there would not be entirely objective approach to this issue—in other words, an objective approach to the order not specifying excepted data. How do you appeal against or apply to vary or revoke an order, given the wording of this clause? Would you not be appealing against the judge’s reasonableness when actually you should be addressing the character of the data? I do not know, but I am worried. Similar points would apply to Amendment 27 to Clause 7, which is about variation or revocation. There is a lot more to get our teeth into and, as my noble friend said, that half-hour meeting is not going to be adequate.

[Baroness Williams of Trafford]

It sounds as if the meeting could last more than a day. Amendment 12 would amend Clause 3(5) by excluding from scope any confidential personal records that may be in electronic form from terrorist investigations.

Police are currently able to apply for a domestic production order for confidential personal records for the purposes of a terrorist investigation under Schedule 5 to the Terrorism Act 2000. Paragraph 4 of the schedule provides that a production order can be made for material consisting of special procedure material or excluded material. These terms are defined in paragraph 3 of the schedule to have the same meaning as in the Police and Criminal Evidence Act 1984. Sections 11 and 12 of the 1984 Act define “excluded material” to include confidential personal records. The definition is essentially the same as that used in the Bill at Clause 3 (7) and (8).

The noble Lord asked about the value of confidential personal records for terrorist investigations. The value of such information is determined at operational level and obviously depends on the circumstances of each case. There may be clear operational value in having access to confidential records in the investigation, pursuit or prosecution of an offender accused of terrorist offences. However, in any event, the judge will grant such an order only if the conditions listed in Clause 4 are met. These include that the information is of substantial value to the proceedings or investigation and that it is in the public interest to seek this data.

The intention behind the provision was to ensure parity with production orders made at home and new production orders capable of being served overseas. The drafting is therefore intended to reflect the powers that currently exist for domestic production orders made under the Terrorism Act 2000. Our law enforcement in the UK should be able to access the same information from overseas as they would in the UK, and Clause 3(5) reflects this.

Parliament has long recognised that a power to require the production of confidential and personal records, subject to the important safeguard of judicial authorisation, is both necessary and proportionate in order to protect the public in the exceptional circumstances of terrorism investigations. The power in the 2000 Act replaced an equivalent one in the Prevention of Terrorism Act 1989. Given the high level of threat to public safety that can arise in a terrorism investigation and the need to be able to investigate quickly and to disrupt such threats, this is an important power in the police investigative toolkit and it is right that it should be available for international production orders. In the context of the current heightened terrorist threat, its omission would be irresponsible.

The Government resist Amendment 12 on the grounds that it causes disparity when gathering evidence here or abroad and would erode a well-established and operationally important power which is routinely used by the police in counter-terrorism investigations.

Amendment 13 relates to Clause 3(7) which defines “personal record” when providing counselling or assistance to an individual for their personal welfare. I reiterate the Government’s position in respect of the Bill: it has been drafted to ensure parity with domestic production orders. The intention is to avoid disparity between gathering evidence in this country compared with gaining evidence abroad. The same powers for law enforcement should exist for overseas production orders as for those in the UK.

The noble Baroness, Lady Hamwee, asked why—I cannot read the writing. Shall I send it back?

[Baroness Hamwee]

Shall I ask the question again?

[Baroness Williams of Trafford]

She asked: why only professional counselling? The Government believe this to be an expansive definition drawing on professional counselling services rather than conversations between friends or family who can be deemed to be giving counselling advice or assistance. The definition leaves little doubt as to what is considered as counselling or support to a person’s welfare. Broadening the definition does not provide the certainty required when deciding whether or not to grant an order based on whether the material sought is excepted data.

[Baroness Hamwee]

My Lords, we have two definitions: “personal records” and “confidential personal records”. It is the latter that is important. Clause 3(8) makes it quite clear that there has to be some restriction or obligation of confidence, which you would certainly find in connection with professional “counselling”—and I am grateful for that way of describing it in one word. That criterion would be applied in the context of this clause overall. It may be unlikely that a non-professional counsellor would be able to meet the criteria in Clause 3(8), but it is not impossible. It seems to me that, as long as Clause 3(8) can be relied on, we should not attempt to narrow what is meant by “counselling” in Clause 3(7).

[Baroness Williams of Trafford]

The noble Baroness may now have confused me. Both Clauses 3(7) and (8) have been drafted to reflect existing protections in domestic production orders, which are intended to afford protection to legally enforceable relationships of trust and confidence, as well as to relationships between an individual and someone who holds a position of trust in a professional capacity—for example, a doctor—where such relationships may generate confidential information from an individual. This is different from a person who voluntarily shares information in confidence with a friend or family member who does not formally or professionally hold a position of trust and is not under a duty of confidentiality in respect of the person sharing the information.

[Baroness Hamwee]

My Lords, I think that was my argument. Might it be possible, between now and Report, for us to be given the references to the other legislation that this reflects?

[Baroness Williams of Trafford]

We can certainly do that—in fact, magically, we have it here. It reflects the definition in the PACE Act 1984, Section 12 of which defines “personal records”. As such, this material is excluded from the scope of a PACE production order.

The noble Baroness asked about safeguards. The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. Clause 5(2) includes one of these safeguards: that a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing that the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is used in other parts of the Bill—for example, in Clauses 1 and 7, where further safeguards place a similar restriction on the applicant applying for an overseas production order and where an applicant is applying to vary an order.

At the time of considering an application for an order, there will be cases where neither the judge nor the applicant can be certain whether the data sought does in fact include excepted data. This is simply because the contents of the data cannot be known by the judge or the applicant until they are produced. In my view, it is therefore appropriate for the term “reasonable grounds for believing” to remain in the Bill to make clear that the judge has the ability to consider whether excepted data might be obtained, taking into account the other factors that might help them reach such a conclusion. With that explanation, I hope that the noble Lord feels happy to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

In a sense, this is the same issue that the noble Lord referred to before. Because this is a framework Bill, as I said, a judge may be satisfied that the Bill itself provides enough but the additional requirements—as yet unknown—may be applicable in another agreement, as yet unspecified. It gives that scope where it might be required in future.

[Baroness Hamwee]

My Lords, I would like to think about the response to Amendment 15. I think I made clear that I anticipated the Minister’s response to Amendment 14 but she said it much more nicely and fully, and I am glad to have it on the record. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, this is another amendment in my name and that of my noble friend. Under Clause 4(5) the data must be of “substantial value”. I read that as meaning that it must not be trivial. I wonder whether it should be “significant value”, which I think would make a difference to the proceedings or the investigation. I may be told that this repeats language in other legislation, and if that is the case then again I would be grateful for the reference. However, I wonder whether there is a distinction between something that adds weight to what you already know and something that, if it is not a game-changer, you would not get from elsewhere.

We are told that this legislation is likely to be used to enable access to data held by American companies so, as well as wondering whether the terminology reflects other legislation in this country, it occurred to me that maybe it reflects something in American legislation in the cloud. This is of course a probing amendment. I beg to move.

[Baroness Williams of Trafford]

I am very happy to tell the noble Baroness that this is purely British. “Substantial” is a well-established test laid out in PACE 1984. Under Section 8 of that Act a justice of the peace must be satisfied that the material on the premises is likely to be of substantial value before authorising a production order application. “Substantial” is a familiar term to appropriate officers, who will be making applications. They will have many powers at their disposal, and creating a consistent regime is clearly beneficial to quickly understand what will be required to apply for an overseas production order. Given that the term “substantial” is well-established, it is obvious that there exists a body of case law that helps further define and interpret the term, both for appropriate officers and, of course, for the judiciary.

The case law establishes that “substantial” is to be given its plain and ordinary meaning, which will please the noble Baroness, who likes the plain and ordinary in linguistic terms. For example, in the case of Malik v Manchester Crown Court, the High Court found that “substantial” was an ordinary English word and that “substantial value” was a value which is more than minimal: it must be significant. I hope that that provides great clarity to the noble Baroness and that she will feel happy to withdraw her amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, these amendments are about public interest and the balance between public interests. Clause 4(6) requires the judge to consider the public interest and whether it is in the public interest for the data to be produced or accessed, having regard to the matters set out in Clause 4(6). There is a public interest as well in access to data and privacy and it seems to me that the various interests here cannot be judged in isolation. I should like to insert a reference to the public interest in privacy, but in any event to understand at this stage how that balance is dealt with, since the judge is required to have regard to one public interest only. There is a public as well as an individual interest in privacy rights, and I beg to move.

[Baroness Williams of Trafford]

My Lords, Amendments 17 and 18 do not add any protections for privacy rights to those already contained in the Bill and under the Human Rights Act 1998. Without these amendments, the judge would still be required to take into account the impact on an individual’s right to privacy when determining whether the public interest requires production of the data sought.

We understand the need to balance a citizen’s rights and interests against the public interest in law enforcement officers’ ability to investigate crimes and use powers to obtain evidence. This is why the existing requirements in Clause 4 consider not only whether data sought would be in the public interest but whether it would be of substantial value to the investigation or proceedings. A judge is under an obligation to balance the rights of an individual against the state’s need to investigate a crime and to reach a decision which is compliant with the individual’s rights under the ECHR.

I hope that, with those reassurances, the noble Baroness feels happy to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am grateful for those helpful remarks. I beg leave to withdraw the amendment.

Windrush

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 4th September 2018 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord asked about the actions of the task force to help people to return to the UK. The task force will help where it can and in whatever way is appropriate in a particular case. I cannot give the detail as every case will be different. The noble Lord also asked why only 18 people had been apologised to. Of all the people whom the task force is considering, those are the 18 most likely to have suffered detriment. Eleven of those people left voluntarily; clearly, they are being helped to return to this country if they wish to do so, in whatever way might be appropriate.

[Baroness Hamwee (LD)]

My Lords, the Minister referred to the “lessons learned” review. I am not asking a question on this first point, but it must have been a shock—and a lesson—to a number of individuals to have learned that three deportees had died. On the review, can she confirm that the work will apply much more generally than to the Windrush generation? The objectives refer to “operational decisions”. I have heard, from someone who used to work at the Home Office, that the way in which it took decisions in the case of Windrush showed “casual cruelty”. The Joint Committee on Human Rights, of which I am a member, did not use quite such strong language, but in its recent report it referred to the fact that there was no power to detain being “blithely ignored”, and used the word “shocking” of the Home Office’s approach to Windrush cases; the whole committee agreed to that. It would be surprising if those attitudes were confined to decisions regarding simply the Windrush generation, so can the Minister give the House assurances about the broad application of the lessons to be learned?

[Baroness Williams of Trafford]

We were all shocked at the death of those three people. Without talking about the individual cases, I know that two were removed post 2010 and one previously. None was detained and all left the country voluntarily, but that does not diminish in any way the sadness at the fact that they have died. The whole House will share the noble Baroness’s shock. She gave some descriptions of the approach of the Home Office to the Windrush generation and other immigration cases. As I have said to her and to the House before, it is worth bearing in mind that the new Home Secretary made it very clear when he arrived in post that the new approach would be to treat people as people, not as cases—a more humane approach. I hope that, since he became Home Secretary, he has demonstrated his commitment both to the Windrush generation and to that more humane environment, including by dropping the term “hostile environment”.

Immigration Detention: Shaw Review

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 24th July 2018 Lords Chamber

[Baroness Hamwee]

But I will go on for the moment.

A pilot of additional bail referral is mentioned. Could we have more details of that? Could we also know the timescale that is anticipated for the review of how time limits work in other countries? I want also to mention prisons. What work do the Government anticipate as a result of this with regard to those who are held in immigration detention in prison?

I have said that I welcome the direction that this takes, but the Minister would expect me to be keen for more and faster work. However, I end by saying that I particularly welcome recommendation 1—unlike the noble Lord, I started at the end rather than the beginning of the report—which deals with promoting voluntary returns. It strikes me that that should have been very much part of the strategic plan for detention, which was the first recommendation in Mr Shaw’s first report.

I will end on a gentler note: I wish all colleagues a happy holiday, however long or short that may be.

[Baroness Williams of Trafford]

That sounds ominous —I am having my holiday.

I will go first to the noble Lord, Lord Rosser, who asked why there was a delay in publishing. I have probably trailed this on several occasions, when I said that Stephen Shaw had published his report and we were considering it and would respond in due course. We have rightly considered what is, as noble Lords have said, a big tome, before responding to it today. I hope that the noble Lord and the House do not see any conspiracy in the fact that it has been responded to on the last day.

The noble Lord said that the Government’s efforts had no impact on vulnerability. Stephen Shaw acknowledges real progress and said that it would be folly to abandon our reforms now. The adults at risk policy has certainly strengthened our focus on vulnerability and on the existing presumption against the detention of those who are particularly vulnerable to harm. However, I agree, as does my right honourable friend the Home Secretary, that we need to do more. That is why we will differentiate more strongly between vulnerable cases to ensure that the most complex get the attention that they need, building on the progress that has been made, to provide greater protection for the most vulnerable.

The noble Lord made the point that half the people detained are released and asked whether detention was therefore right in the first place. We would all like the proportion of detainees who are removed to be higher and we are tackling barriers to that. However, people may be released from detention for a wide range of reasons: by the courts, by appeal or by other legal proceedings, or there might have been a material change in their circumstances. That does not necessarily mean that the original decision to detain was inappropriate or wrong.

The noble Lord talked about time in detention being over six months. The Government totally agree that we should detain people for the minimum amount of time, consistent with their removal. Continuing challenges on documenting individuals and late appeals are an issue. The issues of foreign national offenders and public protection also remain important considerations.

I shall have to gallop through my replies. The noble Lord, Lord Rosser, referred to problems with additional beds. He will have heard today that my right honourable friend the Home Secretary has announced that there will be no more than two beds to a room. He also talked about the detention of pregnant women. Decisions on whether or not to detain individuals have never been predicated on absolute exclusions for any particular group. Being pregnant is not of itself a vulnerability, but I understand where the noble Lord is coming from on that. He mentioned indefinite detention. The Government are committed to getting more evidence on this issue into the debate. He will have heard what I said about my right honourable friend the Home Secretary carrying out a review into that and publishing its findings.

The time has run out extremely quickly. I do not know whether that is because noble Lords spoke for too long or because I did, but I have a number of unanswered questions, to which I will reply in writing and place a copy in the Library.

ONS New Crime Statistics

Debate between Baroness Williams of Trafford and Baroness Hamwee

Friday 20th July 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the Minister mentioned increased rates of reporting. That is a point that she will have heard, as I have, many times over decades now as part of an explanation. I do not discount it as part of an explanation, but can she assure the House that every effort will be made to encourage victims to report and that ways will not be found to deter them?

[Baroness Williams of Trafford]

The noble Baroness makes a very valid point. There is increased reporting and we do not want to discourage that. We have gone to some lengths to encourage victims of domestic violence and sexual abuse to come forward, as well as victims of FGM—as we heard in the debate that has just taken place—and victims of stalking. With all those types of crime, people were unwilling to come forward. So, yes, we are absolutely adamant that we want victims to carry on reporting those crimes.

Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018

Debate between Baroness Williams of Trafford and Baroness Hamwee

Wednesday 27th June 2018 Lords Chamber

[Baroness Lister of Burtersett]

I think the Minister might be getting us a bit mixed up, because the noble Baroness, Lady Hamwee, spoke more about consultation. What she wanted to know, and therefore what I will ask now, is: what was the response? That was not made clear in the Explanatory Memorandum. The response to us was that the organisations are very unhappy about this, which is why this Motion has been brought this evening.

[Baroness Hamwee]

Perhaps I may come back on that. I quoted the paragraph on the consultation outcome because the implication of the Home Office saying it has considered comments from the NGOs is that there is no difference between them, or at least nothing substantial, and that we should not be worried about whether the NGOs made critical comments—which we have discovered they did.

[Baroness Williams of Trafford]

I take both noble Baronesses’ point. We did engage with the NGOs. What are the differences between us? I will get back to the noble Baronesses and place a copy of the letter in the Library in due course, because I do not have the information on what the feedback was.

The noble Baroness asked about powerlessness being confined to physical situations. It is also a consideration in cases where no physical harm takes place, so it could apply in a situation in which, for example, an individual is subjected to psychological abuse.

Perhaps I may conclude with a word on training. Over the past six weeks, officials have delivered an extensive training programme for caseworkers making detention decisions and for healthcare staff based in immigration removal centres and residential short-term holding facilities. One thing that NGOs have been able to do is observe that training and provide feedback, which the trainers have taken on board.

On the broader question, I hope that both noble Baronesses will allow me to get back to them on that. New and comprehensive guidance will be provided for caseworkers and healthcare staff. I hope that we will be able to provide caseworkers with the guidance and the knowledge that they need to make consistent and fair decisions, which is what we all seek. We will keep the guidance under review.

The Government are committed to discharging their duty to control immigration effectively and to secure our borders, but I can assure noble Lords that of course at the same time we are absolutely committed to the welfare of all detainees and to protecting the victims of torture and other vulnerable people in immigration detention. Those aims are not incompatible, and it is to these complementary ends that we are implementing the court’s judgment now.

EU Settlement Scheme

Debate between Baroness Williams of Trafford and Baroness Hamwee

Thursday 21st June 2018 Lords Chamber

[Baroness Williams of Trafford]

I thank the noble Lord for making that point. Permanent residency status was afforded to EU citizens when we were—as we still are—in the European Union. That will change, but their settled status will not change once we leave the EU. They will move from the status we had when we were in the EU to one that we will have when we are outside the EU—settled status—and they will not be charged for it. I know that it is not ideal and that they should automatically have it. However, that is the reason for the change.

[Baroness Hamwee (LD)]

My Lords, the Minister talked about working with stakeholders, and I believe that the Immigration Minister’s recent meeting with the organisation the3million was, according to its website, very successful. I think we should be grateful to the3million for its forensic analysis of the position. For instance, one of its 150 detailed questions is how a stay-at-home parent—one of the examples used in the Statement—can prove his or her residence. When will the Home Office be able to give answers to all those questions, as I understand it has agreed to do? Secondly, I believe that the withdrawal agreement states that the process is to be monitored by an independent authority. Can the Minister give the House details of that? Finally, on the point about British citizens in Europe, I wonder whether she is aware that the organisation British in Europe suggests on its website today that the Home Secretary is asking the wrong questions, because the current registration systems across the EU 27 are “largely working well”, and it is only France, along with the UK, that does not require a form of registration, so our Government should be asking what is planned to tweak existing systems. British in Europe also points out that the real issue for its members is free movement, which is a huge issue for British people on the continent, as 80% of Brits in the EU 27 are of working age or younger and rely on free movement for work and to keep their family together.

[Baroness Williams of Trafford]

I thank the noble Baroness for her questions. I think I addressed in the Statement the very example she gave of stay-at-home parents. As the Statement says, applicants will not need to show that they meet the detailed requirements of free movement rules, which I think was the point that the noble Baroness was making. So if you are a stay-at-home mum—to pick a stereotype—or somebody who is retired, will you have to prove free movement rights? No, you will not. That is the simple answer to that. Regarding the independent authority, I do not think it has been announced yet, although I will confirm that in writing to the noble Baroness. I am pretty sure that it has not been announced, but it will be in due course.

Immigration: Hostile Environment

Debate between Baroness Williams of Trafford and Baroness Hamwee

Thursday 14th June 2018 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Bassam of Brighton, for securing this debate, and all those who have spoken for their varied and interesting contributions. I thank the noble Lord, Lord Parekh, for his particularly thoughtful contribution, and pay tribute to the noble Lord, Lord Morris—our very own Windrush Member of your Lordships’ House.

It is true to say that the work of the Home Office is vast. Millions of visa, citizenship and settlement applications are granted every year, and thousands of people are provided with international protection thanks to the decisions of Home Office case workers. However, as the Home Secretary has made very clear—a number of noble Lords have alluded to this—as well as having a fair and humane immigration system, as the noble Baroness, Lady McIntosh, said and the noble Lord, Lord Kennedy, has just mentioned, we need one that clearly distinguishes between those who are here legally and those who are here illegally, as the noble Lord, Lord Parekh, very articulately pointed out. It is important to recall that successive Governments have put in place controls to deter illegal migration and protect public services.

It remains the case that the public expect us to enforce immigration laws approved by Parliament as a matter of fairness to those who abide by the rules. A recent YouGov poll showed that 71% of the public support our policy of requiring people to show documents to prove their entitlement to be here, work, rent a flat or access services and benefits. These measures have been introduced over many years. The first NHS charges for overseas visitors were introduced in 1982. The right-to-work checks were introduced in 1987, not 2014 as the noble Lord, Lord Kennedy, said. The Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002 introduced restrictions on accessing benefits, social housing and social services. To return to the point made by the noble Lord, Lord Parekh, we have to clamp down on people who are here illegally.

Key elements of the compliant environment policy were put in place by the Opposition when in office, and it was during that time that the policy was described by Ministers as a hostile environment against illegal immigration. I am happy to answer the question from the noble Lord, Lord Parekh: that is when it started. I am happy to confirm to the noble Lord, Lord Bassam, that Alan Johnson used the term “hostile environment” and that the term was used by the Immigration Minister Phil Woolas in 2010 in his strategy paper on immigration, following a similar strategy paper in 2005. So the term has been used, and noble Lords have made the point that we can all go back and blame various different people for it, but the current Home Secretary has made clear that it is a term that he does not want to use and that the term “compliant environment” better reflects our values as a country, ensuring that fair rules are properly upheld.

More recently, measures to prevent illegal migrants from accessing the private rented sector have been introduced to bring consistency with well-established controls on accessing social housing. Further controls on access to bank accounts and driving licences introduced in the 2014 and 2016 Acts carry on this trend. In relation to access to employment, which is one of the key draws for illegal immigration, employers have had a duty to prevent illegal working, as I have said, since 1997. Since 2008 this requirement has been underpinned by civil and criminal sanctions for non-compliant employers, which were introduced by the Opposition. If an employer is found to have employed someone illegally and they are unable to demonstrate that they have carried out the prescribed check, they may be liable to a civil penalty. There is a sliding scale of penalties and the maximum is currently £20,000 per illegal worker.

Employers comply with the law by undertaking a simple right-to-work check on new employees and repeat checks on those with time-limited status. This is a face-value check of an original document set out in secondary legislation as being acceptable for this purpose. Employers need to contact the Home Office only in certain specified circumstances, including when a potential employee has an outstanding immigration application or appeal, during which time they may be entitled to work. Employers can also contact us if they believe that someone has the right to work but does not have the necessary documents to evidence that right. Retrospective checks on people who were employed before checks were introduced are not required.

In setting the list of documents that individuals may provide to demonstrate their right to work, we have prescribed documents that most lawful residents already have or are able to obtain at minimum cost. For example, UK citizens may use their UK passport or alternatively their national insurance number in combination with their long birth or adoption certificate. I hope that that helps the noble Baroness, Lady O’Neill, but I understand her point about the Irish question. The Home Office provides guidance for employers, an interactive tool on checking a right to work and an employer checking service for employers who are unsure whether a potential employee has the right to work. The statutory code of practice makes it clear that employers should conduct checks on all prospective employees, not just those whom they believe may not have the right to work in the UK.

Several “compliant environment” measures have been the subject of public consultations, impact assessments and policy equality statements prior to introduction. Noble Lords will be aware that the Immigration Act 2014 also introduced the right-to-rent scheme, which noble Lords have referred to today. Engagement with the sector, the Equality and Human Rights Commission, the Northern Ireland Equality Commission and housing charities had a major impact during the design of that legislation. As a result of that engagement, we incorporated exemptions for accommodation occupied by vulnerable groups and enabled individuals to demonstrate their right to rent using a broad range of commonly available documents without a passport or photo identification.

The scheme was extended to cover the whole of England in February 2016, after an evaluation of its operation in the West Midlands found no evidence of discrimination arising, no impacts on levels of homelessness, no further barriers to people with little formal documentation accessing the sector and no impacts on the availability or costs of let accommodation—to answer the question from the noble Baroness, Lady Hamwee, that was posed by the noble Lord, Lord Paddick, and the point made by the noble Lord, Lord Kennedy. The evaluation also found that, where landlords engaged with the checks required, they found them to be straightforward and easy to operate. Landlords are not asked to be immigration or forgery experts, contrary to the assertions by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy. The checks do not require all tenants to have passports or immigration papers.

For example, a check can be satisfied by presenting a letter from a charity involved in the access to the private rental scheme and a letter from a professional who can confirm that they have personally known the holder for at least three months. The scheme was modelled on the checks that many landlords have been carrying out themselves to establish the credentials of prospective tenants—for example, credit checks, which have been taking place for many years and which, for obvious reasons, landlords carry out diligently.

The noble Baroness, Lady Hamwee, asked me about immigration bail and the issue of study. As she acknowledged, I answered her very clearly on this point and I hope that she is satisfied with that. The case still stands as to what she asked me last week.

[Baroness Hamwee]

The problem is that in practice, practitioners are finding that it does not.

[Baroness Williams of Trafford]

I was about to go on to say that the Home Office is performing a check to ensure that no one is having study restrictions placed on them inappropriately. I hope that she is satisfied by that.

The noble Lords, Lord Bassam and Lord Kennedy, and the noble Baroness, Lady Hamwee, referred to the Independent Chief Inspector of Borders and Immigration’s report on the right to rent. We welcome that report. It made four recommendations, and noble Lords referred to recommendation 3 on the consultative panel. It will be reconvened and we will ask the noble Lord, Lord Best, to continue to co-chair it. Somewhere in my pile of documents, I have the make-up of the panel. It will be co-chaired by the Immigration Minister and the noble Lord, Lord Best, as I said. It will be made up of Crisis, Shelter, the Equality and Human Rights Commission, bodies representing landlords, agents and local authorities—those people with housing expertise.

Home Office: Data Breaches

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 5th June 2018 Lords Chamber

[Baroness Williams of Trafford]

I thank the noble Lord for asking that question about clarity. He is absolutely right to be concerned about lost documents. It can be devastating for people, particularly for immigration or visa purposes. Following a spike last November, UKVI formed a lost documents working group to identify methods of preventing lost documents. From October 2018, the majority of customers will complete their visa application, for example, at front-end service points in the UK managed by our new commercial partner on behalf of UKVI. The noble Lord asked about breaches. They are normally reported to Home Office security and to the data protection officer.

[Baroness Hamwee (LD)]

My Lords, the fact that there has to be a specific lost documents working party says a great deal about organisation in the Home Office. I dare say that there are many millions of EU citizens who will be delighted to know that their documents will be handled with care. I should not be so cynical. If personal information is to be dealt with more reliably within the Home Office, can we expect a reduction in the percentage of successful appeals to the tribunal, which currently stands at 40%?

[Baroness Williams of Trafford]

The noble Baroness raises a point that the Home Office itself acknowledges. Documents have on occasion been lost—a minute proportion of the total number of documents that it deals with, I have to say, but lost nevertheless. As I say, moving to a digitised system should help in huge part to guard against that. The reporting of data breaches in future should also help not only to highlight what has happened but, hopefully, to prevent stuff from happening in future.

Asylum Seekers

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 15th May 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, have we forgotten Jimmy Mubenga? The coroner who inquired into his death during his removal recommended that the Home Office and the Ministry of Justice,

“rigorously review the approved methods of restraint, and specifically the use of force in overseas removals”,

and mentioned,

“appropriate techniques and bespoke training packages”.

The Minister just mentioned training but it does not sound as though it has taken. In this case, the Chief Inspector of Prisons said:

“What we found was pre-emptive and excessive use of restraints that was indicative of poor operational practice and inadequate management”.


Will things change?

[Baroness Williams of Trafford]

The noble Baroness will appreciate that I will not talk about individual cases, but she is absolutely right that the dignity and welfare of all people in our care is of utmost importance. Physical force should be used only after a thorough risk assessment and in consideration of each individual’s personal circumstances. Restraints should be removed at the earliest opportunity. Home Office contractors, including escorting staff, are expected to behave in a professional, calm and measured way at all times. The Home Office uses all reports resulting from use of force monitoring reviews to ensure that techniques are used proportionately, are justified and are used for the minimum period required. As I told the noble Lord, Lord Beecham, a review of dynamic risk assessment processes and the use of de-escalation techniques will be undertaken by the Home Office and the new escorting provider.

Asylum Seekers: Students

Debate between Baroness Williams of Trafford and Baroness Hamwee

Wednesday 9th May 2018 Lords Chamber

[Baroness Hamwee]

To ask Her Majesty’s Government how many young asylum seekers have been required to cease studying as a condition of immigration bail, following the recent introduction of new provisions; and whether that condition will be applied to all asylum seekers.

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

My Lords, we have management information figures but these are not robust. I assure noble Lords that the new immigration bail provisions are not designed to be used to prevent children and asylum seekers studying. The Home Office is proactively looking to identify cases where this has been applied inappropriately, and will issue a new bail notice to the individual.

[Baroness Hamwee (LD)]

My Lords, I am grateful for that Answer. The Minister will know it is widely believed that there is a blanket ban at present on asylum seekers accessing education, although an assurance was given during the passage of the legislation that it would be used merely to specify where education was accessed. In any event, what is the objective of applying this condition? Is a ban on study necessary? What does it achieve?

[Baroness Williams of Trafford]

My Lords, I must stress that there is not a blanket ban and it is not mandatory to impose a ban on studying. The cohorts of people who might be prohibited from studying are adult immigration offenders—for example, overstayers who are not asylum seekers; adults whose appeal rights have been exhausted, other than care leavers receiving local authority support; adults being deported; foreign criminals who have not made an asylum claim; and all adults for whom a deportation order is signed and enforceable.

NHS: Overseas Doctors

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 8th May 2018 Lords Chamber

[Baroness Williams of Trafford]

All overseas doctors—I think my noble friend was talking about non-EEA doctors—should obviously have the requisite qualifications to practise. At the danger of repeating myself, if those doctors are on the shortage occupation list, there should be no bar to obtaining a visa.

[Baroness Hamwee (LD)]

My Lords, the Minister mentioned the Migration Advisory Committee. As someone once said, “Advisers advise, Ministers decide”. Are the Government confident that the restrictions on visas for particular occupations are supported by employers, stakeholders and the general public?

[Baroness Williams of Trafford]

My Lords, I cannot speak for the general public at large. The noble Baroness is absolutely right that advisers advise, and those advisers advise on those professions for which we have a shortage. We have not talked about other professions, such as particular types of skilled engineers, which are in shortage in this country. She is absolutely right that Ministers then decide on what the criteria should be.

Immigration: International Students

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 26th March 2018 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord is absolutely right that 95% of students—I thought it was slightly more—are compliant. However, I dispute his point about discouraging students. As I said in reply to the original Question, student numbers were up 6% this year. However, if people come here and require services such as housing or other sorts of public services, those figures have to be considered in all sorts of ways when planning for the population that is resident here.

[Baroness Hamwee (LD)]

My Lords, will the Minister consider that what may be gained in the numbers is lost by the message as it is heard: foreigners are not welcome, and the British do not understand the international nature of learning?

[Baroness Williams of Trafford]

My Lords, the message that is going out appears to be from your Lordships’ House and is not being heard internationally. Much has been made of applications from India. Last year, the numbers granted increased by 28%. I dispute that students are not feeling welcome in this country. They are applying in their droves.

Trafficked Children: Asylum

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 19th March 2018 Lords Chamber

[Baroness Williams of Trafford]

I can tell my noble friend that in 2016 1,278 children were referred to the NRM for consideration of whether they had been a victim of modern slavery, a 30% increase on 2015. We will be publishing figures for 2017 in March and, if available for disclosure, they will be provided.

[Baroness Hamwee (LD)]

My Lords, does the Minister agree that the longer the delay in reaching a decision in respect of a trafficked child, the greater the risk of that child going missing and being retrafficked?

[Baroness Williams of Trafford]

It is certainly the Government’s intention to make decisions as quickly as possible. I totally concur with the noble Baroness that if we have a vulnerable child in our care, we should make decisions about them as quickly as possible.

Air Guns

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 5th March 2018 Lords Chamber

[Baroness Williams of Trafford]

In answer to my noble friend’s first question, I totally agree and have seen at first hand that responsible use should be at the heart of all country and field sports. I will certainly take back his point about consolidating the various regulations and licensing.

[Baroness Hamwee (LD)]

My Lords, the Government’s guidance says that,

“if you have never shot before, you would be well advised to go to a shooting club … and learn … how to handle your air weapon safely and responsibly”.

It advises people to learn about this. Does that not tell us all we need to know about the desirability and importance of licensing?

[Baroness Williams of Trafford]

My Lords, this country has some of the strictest gun laws in the world. The outcome of the review will be very interesting and the Government will certainly take good cognisance of it in responding to it. The noble Baroness is absolutely right that these things should be as tightly regulated as possible.

Yarl’s Wood: Hunger Strike

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 27th February 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, does the Minister accept that the Government’s policy on achieving pretty swift removal when someone should be removed and the operation of their guidance on adults at risk in immigration detention are not working? Surely one reason for the action taken by women in Yarl’s Wood, which is the sort of response one might expect from people who feel unjustly imprisoned, is that detention should be detention and not imprisonment, which is how it is regarded. Will the Government not reconsider looking at the mechanisms used in the Scandinavian countries, where work is done successfully within the community to encourage people to leave when they have no right to be there, and applying a more humane and, frankly, more effective policy such as the ones we see in those countries?

[Baroness Williams of Trafford]

My Lords, I do not have concerns that the Government’s policy is not working. The policy is most certainly that action to get people out of detention should be taken as quickly as reasonably possible, but a reason for someone remaining in detention for longer than they might have done is that they might themselves have launched further appeals against their removal. The reasons for detention are many and complex, but the purpose of detention is to enable swift removal.

Refugees: Teaching of English

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 6th February 2018 Lords Chamber

[Baroness Williams of Trafford]

If my noble friend is talking about the same programme I am thinking of, Talk English, it was an excellent initiative, of which I saw an example up in Manchester. The parents, in particular the mothers, dropped their children off at school and then went into the school and were taught English. Things like that not only make women feel part of their children’s environment but also make them feel part of the community in which they live. I remember asking one mother what it was about Manchester that she liked so much. She said, “I love the rain”.

[Baroness Hamwee (LD)]

My Lords, the Minister has referred to £10 million of funding over five years for additional ESOL teaching, and that is very welcome. But is it not the case that this will benefit only resettled Syrian refugees, meaning that the great majority of refugees in the UK are locked out? On investment for these programmes, the Minister should take comfort from the fact that there is huge public support for funding teaching English for all refugees.

Modern Slavery: Indian Supply Chains

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 5th February 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I did not absolve the Government of responsibility by saying that it is up to the NGOs to produce a list. I outlined the difficulties of producing a list, because of filtering by turnover size. The idea of public pressure is a strong one. In addition, I outlined the remedies available to the Home Secretary, which include applying for a court injunction requiring businesses to comply. They are liable to an unlimited fine for contempt of court if they do not.

[Baroness Hamwee (LD)]

My Lords, I believe that the Government have not yet taken the step, which I accept is something of a nuclear option, of applying for an injunction. Is the Minister aware that the National Audit Office, in its report in December on modern slavery, commented on the fact that,

“the Home Office does not produce a list of businesses that are expected to comply with the legislation and cannot say how many companies that should have produced a statement have done so”?

It also says:

“The Home Office has acknowledged that to date the quality of statements has been variable. Statements therefore do not provide equal levels of assurance to those scrutinising them”—


that is, the NGOs and members of the public. Do the Government have any ideas as to how to assist those who would wish to scrutinise them?

[Baroness Williams of Trafford]

My Lords, in terms of the Government, all government departments require their suppliers to tell them whether they are compliant with the transparency requirement of the Modern Slavery Act. I accept the noble Baroness’s point that some of the statements vary in terms of the quality and the information that they provide, but I reiterate that the legislation is relatively new and I expect that the whole system will see improvements.

Deceased Individuals: Allegations

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 22nd January 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, obviously I cannot comment on any individual case but it may well be that that is the motive.

[Baroness Hamwee (LD)]

My Lords, given the difficulty of maintaining in the public’s mind the presumption of innocence until proven guilty, especially with the proliferation of social media, is there anything that we can learn from experiences in other countries or jurisdictions that have the same presumption?

[Baroness Williams of Trafford]

My Lords, what we can certainly do is learn from some of the situations that have arisen in this country. I could not comment at this point on examples from around the world.

Immigration Control (Gross Human Rights Abuses) Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Hamwee

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

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

My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for bringing forward this debate. Many noble Lords, including the noble Lord, Lord Rosser, the noble Baroness, Lady Hamwee, my noble friend Lady Wheatcroft and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that they had read the book Red Notice, as have I. The word “compelling” comes to mind—and if it was fiction, it would certainly be a bestseller. I know that the noble Baroness, Lady Kennedy, was not present for much of the passage of the Criminal Finances Act, but she may be interested to read the section in Part 1 to which she referred today, as there was some compelling debate at that juncture. My right honourable friend the Home Secretary announced very recently the setting up of the National Economic Crime Centre for the UK, which brings together all the agencies to tackle serious fraud and economic crime.

The Bill seeks to provide for the refusal and curtailment of leave where a person is known to be, or to have been, involved in gross human rights abuses. The Government are committed to improving human rights across the world by holding states accountable for their human rights records. We take a strong stance against individuals who are known to have committed gross abuses and violations, and I commend the wish of the noble Baroness, Lady Kennedy, to act firmly to protect our borders from such individuals.

The noble Baroness, Lady Kennedy, talked about naming individuals, and this touches on a point made by my noble friends Lord Trimble and Lady Warsi. There are compelling reasons for naming and shaming individuals but the Government have always stated that they will not do that. Doing so would send a message to those not named that, by their omission, they are of less concern than those who are named, although that might not be the case. Naming individuals might also alert those named and not named as to the level of information that the Government hold on them.

The noble Lord, Lord Rosser, asked about the number of people refused leave to enter or leave to remain. He will understand that I cannot give that number, but it has always been the Government’s position that for further legislation to be warranted in this area there would need to be a real demonstration that the existing powers were insufficient. I hope I can demonstrate that the provisions proposed in the Bill remain unnecessary.

The Government have a range of measures that provide for robust action to be taken against individuals known to be involved in human rights abuses. Obviously I cannot comment on individual cases, some of which are subject to exclusion orders, but I would like to take noble Lords through the policies and procedures that we have in place to prevent those involved in gross abuses from coming to the UK or securing immigration status here.

As the noble Baroness, Lady Hamwee, pointed out, the Home Secretary has the power to exclude a foreign national if she considers that their presence in the UK will not be conducive to the public good or if their exclusion is justified on grounds of public policy or public security. A person may be excluded for a range of reasons, including national security, criminality, involvement in war crimes and crimes against humanity, corruption and unacceptable behaviour. There is no time limit on exclusion, and a person who is excluded remains so until the Home Secretary agrees to lift that exclusion. Having been excluded by the Home Secretary, anyone who applies for entry clearance or leave to enter must be refused so long as the exclusion remains in force. Such a power is serious and no decision is taken lightly. All decisions have to be based on sound evidence and must be proportionate, reasonable and consistent.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, talked about the test threshold. He is of course correct in his reference to the test in the Immigration Rules. Decisions to exclude must be taken only on the basis of sound evidence. The UK operates a watch list, which is used to flag individuals of concern, and those known to be involved in human rights abuses would be included on that list.

The noble Baroness, Lady Afshar, talked about excluding human rights abusers. Contrary to her concerns, those involved in this sort of shocking behaviour can already be excluded. However, we can make an express amendment to the current guidance to make it absolutely clear that involvement in gross human rights abuses will be grounds for exclusion. That may be helpful.

The noble Baroness, Lady Hamwee, talked about officers’ powers as opposed to the democratic process, although I think that she meant “in conjunction with” the democratic process. Border Force officers’ powers derive from the Immigration Act 1971, particularly those in Schedule 2 relating to refusal of entry to those who do not qualify for entry to the UK.

[Baroness Hamwee]

Yes, of course, there is the democratic process, but I was also concerned that it would be very unusual for it not to be within the context of the Executive’s decision and the Secretary of State’s consideration of the matter. It is not something to be done lightly at Dover.

[Baroness Williams of Trafford]

I do not think I was making light of the noble Baroness’s point. I hope she did not think that.

It is precisely because each decision to make an exclusion order is based on sound evidence and the facts of each individual case that it would not be proportionate or reasonable to exclude every national of a particular country. The vast majority of them will be law-abiding citizens engaged in activity which meets the threshold for exclusion. The current sanctions regime imposed by the UN Security Council and the Council of the European Union adds an additional layer of protection preventing non-EEA nationals of concern from travelling to the UK. International travel bans apply to individuals associated with regimes or groups whose behaviour is considered unacceptable by the international community. Where an EEA national or their family member is subject to a UN or EU travel ban, we will normally refuse admission to the UK on the grounds of public policy or public security.

The Immigration Rules provide for the refusal of entry clearance, the refusal of leave to enter or to remain and the curtailment of leave to a non-EEA national where that person has a criminal conviction, or on the basis of their conduct, character or associations, including where there is independent, reliable and credible evidence of their involvement in human rights abuses. In the case of EEA nationals we can refuse admission to the UK where public policy or public security is engaged. The person must be shown to be a genuine present and sufficiently serious threat to one of the fundamental interests of our society.

Except in exceptional circumstances, a foreign national subject to immigration control who has been convicted of a criminal offence and sentenced to a period of imprisonment faces a mandatory refusal of visa or leave to enter the UK for a specified period. The length of the prison sentence will determine the duration of the ban from the UK. For those persons given a prison sentence of four years or more, an indefinite ban will apply; where a person has received a sentence of between 12 months and four years, there is a 10-year ban; and for those persons with a sentence of less than 12 months, there is a five-year ban. This applies to those convicted in the UK or overseas.

The Government also recognise the importance of distinguishing between those who are entitled to come to the UK and stay here and those who are not. We have a number of measures to assist with this. For those who need a visa to come to the UK, the application process requires the applicant to declare any criminality or immigration offence and to provide their facial image and fingerprints as biometrics. Entry clearance officers are required to check a range of databases, including the biometric, Home Office and police databases. This allows us to check the details of any UK criminal record and identify important information about the applicant’s immigration history, including any travel ban or exclusion order. At the border we undertake similar checks against police, security and immigration watch lists, as I have already said, to identify people of concern. Border Force officers can and do refuse entry if they believe that a foreign national poses a risk.

The Immigration Rules include provision for leave to remain to be curtailed and for indefinite leave to remain to be revoked if we become aware that a person with leave, including refugee status, has been involved in gross human rights abuses. Where a person cannot be removed from the UK because it would breach their human rights, we will consider granting short periods of restricted leave.

I am grateful for the opportunity to set out the wide range of government powers to deal with those committing gross human rights abuses. The measures proposed by the noble Baroness, Lady Kennedy, are not necessary to protect our borders from undesirable individuals. The existing legislative framework prevents those involved in gross human rights abuses entering the UK and, indeed, goes further by ensuring that we can consider an applicant’s complete background and criminal history when deciding whether or not to grant entry.

I thank the noble Baroness for bringing forward this debate today.

Data Protection Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Hamwee

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, these amendments bring us back to the immigration exemption in paragraph 4 of Schedule 2 which, as the noble Lord, Lord Kennedy, said, was debated at some length in Committee. As this is Report, I am not going to repeat all the arguments I made in the earlier debate, not least because noble Lords will have seen my follow-up letter of 23 November, but it is important to reiterate a few key points about the nature of this provision, not least to allay the concerns that have been expressed by noble Lords.

Let me begin by restating the core objective underpinning this provision. The noble Lord, Lord Kennedy, specifically asked for further clarity on this point. The UK’s ability to maintain an effective system of immigration control and to enforce our immigration laws should not be threatened by the impact of the GDPR. It is therefore entirely appropriate to restrict, on a case-by-case basis, certain rights of a data subject in circumstances where giving effect to those rights would undermine that objective. That is the sole purpose and effect of this provision—nothing more, nothing less.

The GDPR recognises this by enabling member states to place restrictions on the rights of data subjects where it is necessary and proportionate to do so to safeguard,

“important objectives of general public interest”.

The maintenance of effective immigration control is one such objective. This is the basis for the provision in paragraph 4 of Schedule 2.

The noble Baroness referred to article 23 of the GDPR. It does not expressly allow restrictions for the purposes of immigration control. She asked whether the immigration restriction is legal. She pointed to Liberty’s claim that the exemption is unlawful. It is not the case.

[Baroness Hamwee]

My Lords, the Minister is reading from her brief, but I do not think I made any of the statements it anticipated I would make.

[Baroness Williams of Trafford]

I have been badly advised somewhere. Shall I just get on with what I was going to say?

I made clear in Committee that the exemption is not a blanket provision applying to a whole class of data subjects. It is important to note that Schedule 2 does not create a basis for processing personal data. The exemptions in that schedule operate as a shield allowing data controllers to resist the exercise or application of the data subjects’ rights as set out in chapter III of the GDPR. It is the assertion or application of those rights that triggers the exemptions in Schedule 2. Given this, it is simply not the case that the Home Office, or any other data controller, can invoke the immigration exemption or, for that matter, any other exemption as a default response to subject access requests by a group of persons. Instead, an individual decision must be taken as to whether to apply the exemption in circumstances where a data subject’s rights are engaged.

Moreover, before a right can be restricted, the controller must be satisfied that there would be a likelihood of prejudice to the maintenance of effective immigration control or the investigation or detection of activities that would undermine the maintenance of effective immigration control. Only if that test is satisfied will the controller be able to apply the restriction on the data subject’s rights. I should also stress that this restriction should be seen as a pause button and not something to be applied in perpetuity to the data subject. If circumstances change so that the test is no longer satisfied in a given case, then the restriction will have to be lifted.

Having said that, I recognise the concerns that were expressed in Committee about the breadth of the exemption, and government Amendments 43 and 44, as the noble Lord, Lord Kennedy, said, respond to those concerns. These amendments remove the right to rectification and the right to data portability from the list of data subjects’ rights that may be restricted. On further examination of the listed GDPR provisions in paragraph 1 of Schedule 2, we have concluded that the risk of any prejudicial impact on our ability to maintain effective immigration control that might arise from the exercise of the rights in articles 16 and 20 of the GDPR is likely to be low.

Having clarified both the purpose of this provision and the way it will operate, and having addressed the concerns about the extent of the exemption, I would ask the noble Baroness, Lady Hamwee, to withdraw her amendment and support the government amendments.

[Baroness Hamwee]

My Lords, I am obviously disappointed by both those speeches. I agree with the noble Lord, Lord Kennedy, that immigration control should be effective and fair, which is precisely what I was driving at. He referred to balance; I quoted article 23(1), which requires necessity and proportionality.

I thank the Minister for her answers and for her response to Liberty. She talked about taking this “case by case”, but is that not how we deal with all our immigration control? We do not apply wholesale visa bans; we are not Trump’s poodle. Data requests are made on a case-by-case, individual basis, but you need to know what data is held in order to make the request.

The Minister referred to a “pause button”. I am afraid that does not, to me, have the air of reality or really offer any assurance in the real world.

Amendment 44 does not respond to our concerns. As I commented, you cannot exercise the right of rectification unless you know what is said about you. I feel we are hardly even talking the same language, although it gives me no pleasure to say that. I think I must seek to test the opinion of the House.

Data Protection Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Hamwee

Committee: 4th sitting (Hansard): House of Lords
Wednesday 15th November 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, from these Benches we also have some concerns about the national security and defence exemption. My noble friends Lord Clement-Jones and Lord Paddick have their names to a clutch of amendments to Clauses 24 and 26, and to a replacement for Clause 25—these are Amendment 124C and so on. These amendments essentially probe what Clause 24 means and question whether the requirements for national security certificates are adequate.

My first question is: what processing is outside the scope of EU law, and so would fall within Part 2 and not within Parts 3 and 4, the parts of the Bill on law enforcement and the intelligence services? Many of these amendments were suggested to us by Privacy International and one or two by Big Brother Watch. Those who know about these things say that they do not know what certificates exist under the current regime, so they do not know what entities may benefit from Clauses 24 to 26. However, Privacy International says that in their current form certificates are timeless in nature, lack transparency, are near impossible to challenge and offer overly broad exemptions from data protection principles, and all the rights of the data subject.

My second question is: what are “defence purposes”? That phrase does not feature in the interpretation clause of the Bill. The Explanatory Notes, in referring to the 1998 Act, refer to the section about national security. Is defence not a national security matter? There are very broad exemptions in Clause 24 and Privacy International even says that the clause has the potential to undermine an adequacy decision. For us, we are not convinced that the clause does not undermine the data protection principles—fairness, transparency, and so on—and the remedies, such as notification to the commissioner and penalties.

I note that under Clause 25(2)(a), a certificate may identify data,

“by means of a general description”.

A certificate from a Minister is conclusive evidence that the exemption is, or was, required for a purpose of safeguarding national security, so is “general description” adequate in this context?

Amendment 124L proposes a new Clause 25 and is put forward against the background that national security certificates have not been subject to immediate, direct oversight. When parliamentary committees consider them, they are possibly tangential and post hoc. Crucially, certificates are open-ended in time. There may be an appeal but the proposed new clause would allow for an application to a judicial commissioner, who must consider the Minister’s request as to necessity and proportionality—words that I am sure we will use quite a bit in the next few hours—applying these to each and every provision from which exemption is sought. The Committee may spot that this could owe something to the Investigatory Powers Act.

Amendment 137P takes us forward to Part 3, the law enforcement part of the Bill. Clause 77(5) gives individuals the right to appeal against a national security certificate, but individuals will not know that they have been subject to such a national security certificate if the certificate itself takes away the specific rights which would require a controller or a processor to inform individuals that there was such a restriction in effect against them. The whole point of a right to access personal information and, on the basis of that, the right to appeal against a restriction, does not seem to us to work. The amendment provides for informing the data subject that he is a subject to a certificate.

Amendment 148C is an amendment to Part 4, which is the intelligence services part of the Bill. Clause 108 refers to an exemption being “required” for the purposes of national security. Our amendment would substitute “necessary”, which is a more objective test. I might require something to be done, but it might not be necessary. It is more subjective. Amendment 148D would—I note the irony here—require a certificate because Clause 109 seems not to require it, although the certificate itself would be conclusive. Finally, Amendment 148H is our response to the Constitution Committee, which recommended that the Government clarify the grounds of appeal for proceedings relating to ministerial certificates under Clause 109, other than judicial review. We have set out some provisions which I hope will enable the Minister to respond to the committee’s recommendation.

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

My Lords, I thank all noble Lords who have spoken to these amendments on the scope of the national security and defence exemptions in Parts 2 and 4 and the provisions in respect of national security certificates.

Amendments 124A, 124M and 124N relate to the exemption in Clause 24 for defence purposes. Amendments 124A and 124N seek to reinstate wording used in the Data Protection Act 1998 which used the term “combat effectiveness”. While it may have been appropriate for the 1998 Act to refer to “combat effectiveness”, the term no longer adequately captures the wide range of vital activities that the Armed Forces now undertake in support of the longer-term security of the British islands and their interests abroad and the central role of personal data, sometimes special categories of personal data, in those activities. I think that is what the noble Lord was requiring me to explain.

Such a limitation would not cover wider defence activities which defence staff are engaged in, for example, defence diplomacy, intelligence handling or sensitive administration activities. Indeed, the purpose of many of these activities is precisely to avoid traditional forms of combat. Yet without adequate provision in the Bill, each of the activities I have listed could be compromised or obstructed by a sufficiently determined data subject, putting the security, capability and effectiveness of British service personnel and the civilian staff who support them at risk.

Let me be absolutely clear at this stage: these provisions do not give carte blanche to defence controllers. Rights and obligations must be considered on a case-by-case basis. Only where a specific right or obligation is found to be incompatible with a specific processing activity being undertaken for defence purposes can that right or obligation be set aside. In every other circumstance, personal data will be processed in accordance with GDPR standards.

Amendment 124M probes the necessity of the applied GDPR’s article 9 exemption for defence purposes. Article 9 provides for a prohibition on processing of special categories of personal data. If we did not modify the application of article 9 for defence purposes, we would be hampering the ability of the Armed Forces to process certain personal data, for example, biometric data. This could have a detrimental impact on operations and other activities carried out by the Armed Forces.

I firmly believe that it is in the UK’s national interest to recognise that there may sometimes be a conflict between the individual’s right to have their personal data protected and the defence of the realm, and to make appropriate provision in the Bill to this end. I think that the noble Baroness, Lady Hamwee, asked about the publication of security certificates. National security certificates are public in nature, given that they may be subject to legal challenge. They are not secret and in the past they have been supplied if requested. A number are already published online and we will explore how we can make information about national security certificates issued under the Bill more accessible in future. She also asked about the timelessness of these certificates. They are general and prospective in nature, and arguably no purpose would be served by a requirement that they be subject to a time limitation. For example, in so far as a ministerial certificate allows the intelligence services to apply a “neither confirm nor deny” response to a subject access request, any certificate will inevitably require such a provision.

Amendments 124C, 124D, 124E, 124F, 124P and 148E seek to restrict the scope of the national security exemption provided for in Parts 2 and 4 of the Bill. I remind the Committee that Section 28 of the Data Protection Act 1998 contains a broad exemption from the provisions of that Act if the exemption is required for the purpose of safeguarding national security. Indeed, Section 28 provides for an exemption on such grounds from, among other things, all the data protection principles, all the rights of data subjects and all the enforcement provisions. Although we have adopted a more nuanced approach in the Bill, it none the less broadly replicates the provisions in the 1998 Act, which have stood the test of time. Crucially, under the Bill—as under the 1998 Act—the exception can be relied upon only when it is necessary to do so to protect national security; it is not a blanket exception.

It may assist the Committee if I provide a couple of examples, first in the context of Part 4, of why the exemption needs to be drawn as widely as it is. Clause 108 includes an exemption from Clauses 137 to 147 relating to information, assessment and enforcement notices issued by the Information Commissioner. It may be necessary for an intelligence service to apply this exemption in cases of extreme sensitivity or where the commissioner requested sensitive data but was unable to provide sufficient assurances that it would be held securely enough to protect the information.

In relation to the offence of unlawfully obtaining personal data, much intelligence work involves obtaining and then disclosing personal data without the consent of the controller. For example, if GCHQ intercepts personal data held on a foreign terrorist group’s computer, the data controller is the terrorist group. Without the national security exemption, the operation, although authorised by law, would be unlawful as the data controller has not consented. Similarly, reidentification of deidentified personal data may be a valuable source of intelligence if it can be reidentified. For example, an intelligence service may obtain from a computer a copy of a list of members of a terrorist group who are identified using code names, and from other sources the service believes that it can tie the code names to real identities.

The need for a wide-ranging exemption applies equally under Part 2 of the Bill. Again, a couple of examples will serve to illustrate this. Amendment 124C would mean that a controller processing data under the applied GDPR scheme could not be exempted from the first data protection principle as it relates to transparency. This principle goes hand in hand with the rights of data subjects. It cannot be right that a data subject should be made aware of a controller providing information to, say, the Security Service where there are national security concerns, for example because the individual is the subject of a covert investigation.

To take another example which touches on Amendment 124D, it is wholly appropriate to be able to limit the obligation on controllers under article 33 of the applied GDPR to disclose information to the Information Commissioner where the disclosure would be damaging to national security because, say, it would reveal the identity of a covert human intelligence source. As is the case under Part 4, this exemption would be applied so as to restrict the information provided to the commissioner, not to remove entirely the obligation to report appropriate details of the breach.

I hope that this has given the Committee a flavour of why the national security exemption has been framed in the way that it has. As I have indicated, the Bill’s provisions clearly derive from a similar provision in the existing Data Protection Act and are subject to the same important qualification: namely, that an exemption may be applied in a given case only where it is required for the purpose of safeguarding national security.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, these amendments return us to the issue of automated decision-making, which we debated on Monday, albeit principally in the context of Part 2.

The noble Baroness, Lady Hamwee, has indicated that the purpose of Amendment 134A is to probe why Clause 48(1)(b) is required. Clauses 47 and 48 should be read together. Clause 47 essentially operates to prohibit the controller making a significant decision based solely on automated processing, unless such a decision is required or authorised by law. Where automated decision-making is authorised or required by law, Clause 48 permits the controller to make a qualifying significant decision, subject to the specified safeguards.

A significant decision based solely on automated processing which is not required or authorised by law is an unlawful decision and therefore null and void. That being the case, we should not seek to legitimise an unlawful decision by conferring a right on a data subject to request that such a decision be reconsidered. Should such a decision be made contrary to Clause 47(1), the proper way to deal with it is through enforcement action by the Information Commissioner, not through the provisions of Clause 48.

Amendments 135 and 144 seek to prevent any decision being taken on the basis of automated decision-making where the decision would engage the rights of the data subject under the Human Rights Act. As my noble friend Lord Ashton indicated on Monday when the Committee debated Amendment 75, which was framed in similar terms, such a restriction would arguably wholly negate the provisions in respect of automated decision-making as it would be possible to argue that any decision based on automated decision-making would, at the very least, engage the data subject’s right to respect for privacy under Article 8 of the European Convention on Human Rights.

At the same time, the unintended consequences of this could be very damaging. For example, any intelligence work by the intelligence services relating to an individual would almost certainly engage the right to respect for private life. The effect of the amendment on Part 4 would therefore be to prevent the intelligence services taking any further action based on automated processing, even if that further action was necessary, proportionate, authorised under the law and fully compliant with the Human Rights Act. Where a decision will have legal or similarly significant effects for a data subject, data controllers will be required to notify data subjects to ensure that they can seek the remaking of that decision with human intervention. We believe that this affords sufficient safeguards.

Turning to Amendment 135A, I can assure the noble Baroness, Lady Hamwee, that automated processing does indeed include profiling. This is clear from the definition of profiling in Clause 31 which refers to,

“any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to an individual”.

Given that, I do not believe more is needed, but I confirm that there is no significance in omitting the word “profiling”. We did not include a reference to profiling as an example of automated decision-making on the grounds that it is just that, an example, and therefore an express reference to including profiling would add nothing.

Amendment 135B would require controllers to notify data subjects within 72 hours where a qualifying significant decision has been made based solely on automated processing. While it is appropriate elsewhere in the Bill to require controllers to report data breaches to the Information Commissioner, where feasible, within 72 hours, we consider that the existing requirement to notify data subjects of what is a lawful qualifying significant decision as soon as reasonably practicable establishes the need for prompt notification while recognising that there needs to be some flexibility to reflect the operational environment.

Amendment 136A seeks to require the Information Commissioner to appoint an independent person to oversee the operation of automated decision-making under Part 3. I am unpersuaded of the case for this amendment. The Information Commissioner is, of course, already an independent regulator with express statutory duties to, among other things, monitor and enforce the provisions in Part 3, so it is unclear to me why the commissioner should be obliged to, in effect, subcontract her functions in so far as they relate to automated decision-making. Such processing is subject to the commissioner’s oversight functions as much as any other processing, so I do not see why we need to single it out for special treatment. If the argument is that automated processing can have a more acute impact on data subjects than any other forms of processing, then it is open to the commissioner to reflect this in how she undertakes her regulatory functions and to monitor compliance with Clauses 47 and 48 more closely than other aspects of Part 3, but this should be left to the good judgment of the commissioner rather than adding a new layer of regulation.

The noble Baroness asked whether it is 21 days from receipt of notification or another time. Clause 48(2)(b) makes it clear that it is 21 days from receipt.

I have some sympathy for Amendment 137, which requires controllers subject to Part 3, on request, to provide data subjects with the reasons behind the processing of their personal data. I agree that data subjects should, in general, have the right to information about decision-making which affects them, whether or not that decision-making derives from automated processing. However, this is not straightforward. For example, as with the rights to information under Clauses 42 and 43, this cannot be an absolute right otherwise we risk compromising ongoing criminal investigations. If the noble Baroness will agree not to move Amendment 137, I undertake to consider the matter further ahead of Report.

Amendments 142C and 143B in the name of the noble Lord, Lord Stevenson, seek to confer a new duty on controllers to inform data subjects of their right to intervene in automated decision-making. I believe the Bill already effectively provides for this. Clause 95(3) already places a duty on a controller to notify a data subject that a decision about them based solely on automated processing has been made.

Amendments 145 and 146 seek to strike out the provisions in Part 4 that enable automated decision-making in relation to the consideration of contracts. The briefing issued by Liberty suggested that there was no like provision under the GDPR, but recital 71 to the GDPR expressly refers to processing,

“necessary for the entering or performance of a contract between the data subject and a controller”,

as one example of automated processing which is allowed when authorised by law. Moreover, we envisage the intelligence services making use of this provision—for example, considering whether to enter into a contract may initially require a national security assessment whereby an individual’s name is run through a computer program to determine potential threats.

Finally, Amendment 146A would place a duty on the intelligence services to inform the Information Commissioner of the outcome of their consideration of a request by a data subject to review a decision based solely on automated processing. We are not persuaded that a routine notification of this kind is necessary. The Information Commissioner has a general function in relation to the monitoring and enforcement of Part 4 and in pursuance of that function can seek necessary information from the intelligence services, including in respect of automated processing.

I hope again that my detailed explanation in response to these amendments has satisfied noble Lords, and as I have indicated, I am ready to consider Amendment 137 further ahead of Report. I hope that on that note, the noble Baroness will withdraw the amendment.

[Baroness Hamwee]

My Lords, I am grateful for the long response and for the Minister agreeing to consider Amendment 137. As regards oversight of automated processing, which is not quite where I would be coming to as something that was suggested to us, it would be fair to say that the commissioner has a resource issue covering all these developments. Maybe it is something that we will think about further in order to approach it from a different direction, perhaps by requiring some regular reporting about how the development of automated processing is controlled and affecting data subjects. I will consider that, but for the moment I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, this quite extensive group of amendments relates to the obligations on controllers and processors and the transfer of personal data to third countries. As the noble Baroness, Lady Hamwee, explained, Amendment 137B seeks to probe the necessity for the words “where applicable” in Clause 59(2)(g), which places a duty on a controller to record details of the use of profiling in the course of processing. This wording is transposed directly from Article 24 of the LED—and. to be clear, we are not excluding types of profiling from being recorded. Rather, the clause provides that all profiling is recorded where profiling has taken place. The wording acknowledges that some processing may not involve profiling.

Amendment 137C seeks to add a definition of the word “nature” as used in Clause 62(4). References to the,

“nature, scope, context, and purposes of the processing”,

are found throughout the LED and we have faithfully transposed this. We accept that the nature of the processing does include the aspects set out in the noble Baroness’s amendment, but we do not believe it necessary to set that out on the face of the Bill, and there is a danger that doing so in these terms could unwittingly narrow the scope of this provision. I might add that the Information Commissioner’s Office already publishes guidance on conducting privacy impact assessments and will be issuing further guidance on issues related to the Bill in due course.

Amendment 137D to Clause 63 would confer on the Information Commissioner a power to make regulations specifying further circumstances in which a controller must consult the commissioner before undertaking processing activities. Currently the requirement is for controllers to consult the commissioner when a data protection impact assessment indicates that processing would pose a high risk to the rights and freedoms of data subjects. Clause 63 reflects the provisions in Article 28 of the LED and sets an appropriate threshold for mandatory consultation with the Information Commissioner. This is not to preclude consultation in other cases, but I am unpersuaded that we should go down the rather unusual road of conferring regulation-making powers on the commissioner. Instead, we should leave this to the co-operative relationship we expect to see between the commissioner and controllers and, if appropriate, to any guidance issued by the commissioner.

Amendment 137E seeks to specify the content of the written advice which the Information Commissioner must provide to a controller in the event that she considers that a proposed processing operation would contravene the provisions of Part 3. I do not disagree with the point that the amendment is seeking to make—indeed, it echoes some of what is said at paragraph 209 of the Explanatory Notes—but we believe that we can sensibly leave it to the good judgment of the commissioner to determine on a case-by-case basis what needs to be covered in her advice.

Amendment 137F would expressly require controllers to account for the cost of implementation when putting in place appropriate organisational and technical measures to keep data safe. I entirely agree with the spirit of this amendment; there needs to be a proportionate approach to data protection. However, I refer the noble Baroness to Clause 53(3), which already includes a provision to this effect. On Amendment 137G, we believe the use of the present tense is correct in Clause 66(3)(a) in that the implementation of the measures is ongoing and not set in the past.

Amendment 137H would require a controller to inform the commissioner when they have restricted the information available to data subjects in the event of a data breach. Clause 66(7) is one of four instances in Part 3 where a controller may restrict the rights of data subjects. I do not believe that there is a case for singling out this provision as one where a duty to report the exercise of the restriction should apply. If the commissioner wants information about the exercise of the power in Clause 66(7), she can ask for it.

Amendment 137J seeks to add to the role of data protection officers by requiring them to update the controller on relevant developments in the data protection standards of third countries. I do not deny that awareness of such standards by police forces and others is important for the purposes of the operation of the safeguards in Chapter 5 of Part 3. However, Clause 69 properly reflects the terms of the LED. It does not preclude data protection officers exercising other functions such as the one described in Amendment 137J.

Amendments 137K, 137L and 137M relate to Clause 71, which sets out the general principles for transfers of personal data to a third country or international organisation. The whole purpose of Chapter 5 of Part 3 is to provide safeguards where personal data is transferred across borders. Given that, I am not sure what Amendment 137K would add. Amendment 137L would narrow the circumstances in which onward transfers of personal data may take place with express authorisation from the originator of the data. In contrast, Amendment 137M, in seeking to remove Clause 71(5)(b), would expand those circumstances —which I am not sure is the noble Baroness’s intention. Subsection (5) is a direct transposition of article 35(2) of the LED, so we should remain faithful to its provisions. What constitutes the essential interests of a member state must be for the controller to determine in the circumstances of a particular case—but, here as elsewhere, they are open to challenge, including enforcement action by the commissioner if they were to abuse such provisions.

Amendment 137N would require a controller to pay due regard to any ICO guidance before coming to a decision under Clause 74(2), which relates to the transfer of data on the basis of special circumstances. The Bill already caters for this. Clause 119 places a duty on the commissioner to prepare a data-sharing code of practice and, under the general principles of public law, controllers will be required to consider the code—or for that matter any other guidance issued by the commissioner.

Finally, Amendment 137EA in the name of the noble Lord, Lord Kennedy, and articulated by the noble Lord, Lord Stevenson, seeks to set in statute the retention period for personal data derived from ANPR cameras. ANPR is an important tool used by the police and others for the prevention and detection of crime. I understand that the National Police Chiefs’ Council has recently changed its policy on the retention of ANPR records, reducing the retention period from two years to 12 months. The new policy requires all data not related to a specific case to be deleted after 12 months. This will be reflected in revised national ANPR standards. We know that the Information Commissioner had concerns about the retention of ANPR records and we welcome the decision by the NPCC in this regard.

Given this, I have no difficulty with the spirit of the noble Lord’s amendment, but the detail is too prescriptive and we are not persuaded that we should be writing into the Bill the retention period for one category of personal data processed by competent authorities. The amendment is unduly prescriptive as it takes no account of the fact that there will be operational circumstances where the data needs to be retained for longer than 12 months—in particular, where it is necessary to do so for investigative or evidential purposes.

More generally, I remind the noble Lord that the fifth data protection principle—the requirement that personal data be kept no longer than is necessary—will regulate the retention policies of controllers for all classes of personal data. In addition, Clause 37(2) requires controllers to undertake a periodic review of the need for the continued retention of data. Given these provisions, I am not persuaded that we should single out ANPR-related data for special treatment on the face of the Bill.

I apologise again for the extensive explanation of the amendments, and I hope that noble Lords will be happy not to press them.

[Baroness Hamwee]

Certainly. I feel that I ought perhaps to apologise to the House for the speed at which we have been going; it has caused a bit of a flurry. I know that I have been quite telegraphic in speaking to the amendments. I have possibly been too telegraphic, but I will read the detail of the response, and beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I cannot be quite so quick but I will be fairly quick. Amendment 142B concerns Clause 91(3), which states:

“The controller is not required … to give a data subject information that the data subject already has”.


When I read that, I wondered how the controller would know that the data subject had the information. Therefore, my alternative wording would refer to information which the,

“controller has previously provided to the data subject”.

There can therefore be no doubt about that.

Amendment 143A concerns Clause 92, which deals with a right of access within a time limit of a month of the relevant day, as that is defined, or a longer period specified in regulations. What is anticipated here? Why is there the possibility of an extension? This cannot, I believe, be dealt with on a case-by-case basis as that would be completely impracticable and, I think, improper. Is it to see whether experience shows that it is a struggle to provide information within a month, and therefore a time limit of more than a month would benefit the controller, which at the same time would be likely to disbenefit the data subject, given the importance of the information? I hope the Minister can explain why this slightly curious power for the Secretary of State is included in the Bill.

Amendment 146B concerns Clause 97, which deals with the right to object to processing. I might have misunderstood this but I believe that the controller is obliged to comply only if he needs to be informed of the location of data. I do not know whether I have that right, so Amendment 146B proposes the wording,

“if its location is known to the data subject”,

so that the amendment flows through in terms of language, if not in sense. The second limb of Clause 97(2), whereby the data subject is told that the controller needs to know this, suggests this. That enables me to make the point that this puts quite a heavy burden on the data subject.

Amendment 148A concerns Clause 101. I, of course, support the requirement that the controller should implement measures to minimise the risks to rights and freedoms. However, I question the term “minimise”. The Bill is generally demanding in regard to this protection, so to root the requirement in the detail of the Bill the amendment would add,

“in accordance with this Act”.

As regards the test of whether a personal data breach seriously interferes with rights, I suggest this is not as high a threshold as that required by the term “significantly” proposed in Amendment 148B.

Following the noble Lord’s co-piloting analogy, I now say, “Over and out”.

[Baroness Williams of Trafford]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Stevenson, who negated the need for me to speak to Amendment 142A, so I shall not do so.

I turn straight to Amendment 142B. This requires the controller to provide a data subject with specified information about the processing of their personal data unless the controller has previously provided the data subject with that information. This contrasts with the existing approach in Clause 91(3), which provides that the controller is not required to give the data subject information that the data subject already has. Although similar, the shift in emphasis of this amendment could undermine Clause 91(2) by requiring the data controller to provide information directly to the data subject rather than to generally provide it. The effect of this could be to place an undue burden on the controller by preventing them providing such information generally, such as by means of their website.

Clause 92 provides for an individual to obtain confirmation from a controller of whether the controller is processing personal data concerning them and, if so, to be provided with that data and information relating to it. It sets out how an individual would request such information and places certain restrictions and obligations on meeting such requests.

Amendment 142C would add to the information that must be provided to a data subject. I do not believe this amendment is necessary. Clause 91 already provides that the general information that must be provided by a controller is information about how to exercise rights under Chapter 3 of Part 4 and I am sure that the Information Commissioner will put out further information about data subjects’ rights under each of the schemes covered by the Bill.

The purpose of Amendment 142D is to remove the ability of the intelligence services to charge a fee for providing information in response to a request by a data subject in any circumstances. The noble Lord, Lord Stevenson, or the noble Lord, Lord Kennedy—I am not quite sure who it was; I think it was the noble Lord, Lord Stevenson—has contrasted the position in Part 4 with that in Parts 2 and 3 of the Bill, whereby a controller may charge a fee only where the subject access request is manifestly unfounded or excessive. The fact remains, however, that the modernised Convention 108, on which Part 4 is based, continues to allow for the charging of a reasonable fee for subject access requests and we are retaining the power to specify a maximum fee, which currently stands at £10.

It is entirely right that the intelligence services should be required to respond to subject access requests, but we believe it is appropriate to retain the ability to charge because we do not want the intelligence services to be exposed to vexatious or frivolous requests that could impose a significant burden upon Part 4 controllers. As I have said, the modernised Convention 108 allows for the charging of a fee and there is a power in Clause 92 not just to place a cap on the amount of the fee but to provide that, in specified cases, no fee may be charged. I think this is the right approach and we should therefore retain Clause 92(3) and (4).

Amendment 143A would require every subject access request under Clause 92 to be fulfilled within one month and would remove the Secretary of State’s ability to extend the applicable time period to up to three months for any cases. The Delegated Powers and Regulatory Reform Committee has considered this Bill and made no comment on this regulation-making power. In our delegated powers memorandum we explained the need for this provision, and the equivalent power in Part 3 of the Bill, as follows:

“Meeting the default one month time limit for responding to subject access requests or to requests to rectify or erase personal data may, in some cases, prove to be challenging, particularly where the data controller holds a significant volume of data in relation to the data subject. A power to extend the applicable time period to up to three months will afford the flexibility to take into account the operational experience of police forces, the CPS, prisons and others in responding to requests from data subjects under the new regime”.


I hope the noble Baroness would agree that this is a prudent regulation-making power which affords us limited flexibility to take into account the operational experience of the intelligence services in operating under the new scheme.

[Baroness Hamwee]

Before the Minister moves on, I asked whether the power would be used on a case-by-case basis, which I thought was what she was saying, or as a result of overall experience—and then she went on to talk about overall experience. So is it the latter, extending to all cases in the light of experience gathered over a period?

[Baroness Williams of Trafford]

Yes, that is the point I made.

One of the rights afforded by Part 4 is that a data subject can require a controller not to process their personal data if that processing is an unwarranted interference with their interests or rights. If such a request is received, the controller may require further information in order to comply with the request. This includes information so as to be satisfied of the identity of the requesting individual or information so that they can locate the data in question.

Amendment 146B would require the requesting individual to provide information to help the controller locate the data in question only if the individual themselves knows where the data is located. I think we can agree that it is very unlikely that a data subject would know the exact location of data processed by a controller. As such, this change could make it more difficult for a controller to locate the data in question, as the data subject could refuse to provide any information to aid in the locating of their data. This could make it impossible for the controller to comply with the request and would in turn deprive the data subject of having their request fulfilled.

Chapter 4 of Part 4 deals with the obligations of the controller and processor. Controllers must consider the impact of any proposed processing on the rights of data subjects and implement appropriate measures to ensure those rights. In particular, Clause 101(2)(b) requires that risks to the rights and freedoms of data subjects be minimised. Amendment 148A would require that those risks be also dealt with in accordance with the Bill. If I understand the purpose of this amendment correctly and the noble Baroness’s intention is that the broader requirements of Part 4 should apply to any new type of processing, I can concur with the sentiments behind this amendment. However, it is not necessary to state this requirement in Clause 101; all processing by the intelligence services must be in accordance with the relevant provisions of the Bill.

Finally, Clause 106 requires that the controller notify the Information Commissioner if the controller becomes aware of a serious personal breach of data for which it is responsible. A data breach is deemed serious if it seriously interferes with the rights and freedoms of a data subject. Amendment 148B seeks to alter the level at which a data breach must be notified to the commissioner by lowering the threshold from a serious interference with the rights and freedoms of a data subject to a significant interference. The threshold is set purposely at serious so that the focus and resources of the controller and commissioner are spent on breaches above a reasonable threshold. We also draw the noble Baroness’s attention to the draft modernised Convention 108, which uses the phrase “seriously interfere”.

I am mindful that some noble Lords in this Chamber will be utterly perplexed by the subject matter to which we have been referring, so I hope that, with those words, the noble Lord will be sufficiently reassured and will withdraw his amendment.

Data Protection Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Hamwee

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 13th November 2017 Lords Chamber

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

My Lords, I thank all noble Lords who have taken part in the debate. There is clearly a lot of interest, as is evident from what has been said. I am also glad to be back opposite the noble Lord, Lord Kennedy of Southwark, as we have been on so many occasions, and I am sure we will be in the future. It is probably worth addressing some of the evident misunderstandings that have arisen around the purpose and the scope of this provision, and I hope to be able to persuade the Committee that this is a necessary and proportionate measure to protect the integrity of our immigration system.

The Government welcome the enhanced rights and protections for data subjects afforded by the GDPR and in negotiating, it was accepted by all parties that at times these rights needed to be qualified in the general public interest, whether that is to prevent and detect crime, safeguard legal professional privilege or journalists’ sources, or in this case maintain an effective system of immigration control. A number of articles of the GDPR therefore make express provision for such derogations, including article 23, which enables restrictions to be placed on certain rights of data subjects. Given the extension of data subjects’ rights under the GDPR, it is necessary that we include in the Bill an express targeted exemption in the immigration context. The exemption would apply to the processing of personal data by immigration officers and the Secretary of State for the purposes of maintaining effective immigration control or the detection and investigation of activities which would undermine the system of immigration control. It would also apply to other public authorities required or authorised to share information with the Secretary of State for either of those purposes.

It is important that it is clear to the Committee what paragraph 4 of Schedule 2 does not do. It emphatically does not set aside the whole of the GDPR for all processing of personal data for all immigration purposes. The opening words of paragraph 4 make it clear that only “the listed GDPR provisions” may be set aside. The listed GDPR provisions are those set out in paragraph 1 of Schedule 2. The provisions in question relate to various rights of data subjects as provided for in chapter 3 of the GDPR, such as the rights to information and to access to personal data, and to two of the data protection principles: those relating to fair and transparent processing and the purpose limitation. Except to that extent, all the data protection principles, including those relating to the lawfulness of processing, data minimisation, accuracy, storage limitation, and integrity and confidentiality will continue to apply. So too will all the obligations on data controllers and processors, all the safeguards around cross-border transfers and all the oversight and enforcement powers of the Information Commissioner. The latter is particularly relevant here as it is open to any data subject affected by the provisions in paragraph 4 of Schedule 2 to lodge a complaint with the Information Commissioner, which the commissioner is then obliged to investigate.

Moreover, paragraph 4 does not give the Home Office carte blanche to invoke the permitted exceptions as a matter of routine. The Bill is clear: the exceptions may be applied only to the extent that the application of the rights of data subjects or the two relevant data protection principles,

“would be likely to prejudice … the maintenance of effective immigration control, or … the investigation or detection of activities that would undermine the maintenance of effective immigration control”.

This is a significant and important qualification. The noble Lord, Lord Clement-Jones, asked why we have not listed exactly what we mean by,

“the maintenance of effective immigration control”.

The maintenance of that control does not merely encompass physical immigration controls at points of entry but, more generally, the arrangements made in connection with a person’s entry into and stay within the United Kingdom. A system of effective immigration control depends on our ability to control the entry and stay of those who wish to come to our country; to identify those who should not be admitted; and to pursue enforcement action against those who are liable to removal for failure to comply with restrictions and conditions on their stay, or otherwise in the public interest.

To use the example of the right conferred by article 15 of the GDPR, each subject access request would need to be considered on its own merits. We could not, for example, and would not want to limit the information given to visa applicants as to how their personal data will be processed as part of that application. Rather, the restrictions would bite only where there is a real likelihood of prejudice to immigration controls in disclosing the information concerned. It is equally important to dispel one other myth. Some of the briefing I have seen on this provision suggests that it creates new information-sharing gateways. This is simply not the case. As I have indicated, Schedule 2 sets out certain exceptions from the GDPR; it does not in and of itself create new powers to share data between data controllers. However, where personal data is shared between controllers for the limited immigration purposes specified in paragraph 4, it does mean that the data subject does not need to be notified if to do so would be prejudicial to the maintenance of effective immigration control.

It may assist the Committee if I explain the kind of information that it might be necessary to withhold from data subjects, and offer a couple of examples of the circumstances requested by the noble Baroness, Lady Hamwee, where to do so would be necessary to maintain the effectiveness of our immigration controls. The classes of information which the Home Office may need to withhold include a description of the data held, our data sources, the purposes for which the data was held, and details of the recipients to whom the data has been disclosed. There will be circumstances where the disclosure to data subjects of such information could afford them the opportunity to circumvent our immigration controls. Two examples will, I hope, help to illustrate where the disclosure of such information may have precisely the adverse effect.

First, in the case of a suspected overstayer, if we had to disclose in response to a subject access request what we are doing to track their whereabouts with a view to effecting administrative removal, it is clearly possible that they might then be able to evade enforcement action. A second example relates to circumstances where we seek to establish the legitimacy of a particular claim, such as an extension of leave to remain in the UK, and suspect that the claimant has provided false information to support that claim. In such a case, we may contact third parties to evidence the claim. If we are then obliged to inform the claimant that we are accessing records held by third parties, they may abscond and evade detection. Such procedures may then become common knowledge and further undermine our ability to maintain effective controls.

Immigration is, naturally, a very sensitive subject area and a topic of huge importance to the public, to the economic well-being of this country and to the social cohesion of our society. Being able to effectively control immigration is, therefore, in the words of the GDPR,

“an important objective of general public interest”.

As I have indicated, having a new data protection regime which seeks to give broader rights to data subjects is to be welcomed. But in an area as sensitive as the immigration system, we need to make appropriate use of the limited exemptions available to us so that we can continue to maintain effective control of that system in the wider public interest.

I hope that I have been able to satisfy noble Lords that this provision is necessary and proportionate. It is not the wholesale carve-out of subject access rights that some have suggested but a targeted provision wholly in line with the discretion afforded to member states by the GDPR, and it is vital to maintaining the integrity of the immigration system.

Having given this provision a good airing, I hope the noble Lord, Lord Clement-Jones, will feel happy to withdraw his amendment.

[Baroness Hamwee]

My Lords, there is a lot that demands careful reading and careful thought. I have three questions which I can raise now. First, in the examples which the Minister gave it struck us on these Benches that she was talking about things which are, in fact, criminal offences being dealt with under Part 3, which is the law enforcement part of the Bill.

Secondly, how is all this applied in practice? How does the controller know about the purposes? I am finding it quite difficult to envisage how this might work in real life. Thirdly, the Minister referred to the lawfulness of processing. I wonder whether this is not circular because paragraph 4, in disapplying listed provisions—by the way, I think those listed provisions include many which are very important indeed—makes it lawful, so I have a bit of a problem around that. Of course, I and others will carefully read what the Minister said, but I am sure we will want to return to this at the next stage.

[Lord Lucas]

My Lords, I felt entirely comfortable with my noble friend’s examples, but they do not fit with what the Home Office has been doing. What it has done with the national pupil database is not to ask targeted questions when it has a problem with an individual but to collect the whole lot so that it has the ability to trawl, look at, match and use the whole of the dataset. That is a much more dangerous thing because of the consequences it has for the integrity of the data and for the way in which the lawfulness of gathering it is questioned. It is that sort of practice that troubles me. I had not read this clause in the narrow way in which my noble friend described it. I will obviously go away and read it again carefully, but if she would add a letter to her noble friend’s letter enlarging on why this is a narrow provision and giving us comfort, that would be worth while for me.

Banks: Immigration Act 2016

Debate between Baroness Williams of Trafford and Baroness Hamwee

Monday 23rd October 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, individuals are not checked on because their name is Patel, Singh, or any other name which could designate foreign origin. Individuals will only be affected by the provisions if their details have been shared with firms—ie, they are on a list as being illegal immigrants.

[Baroness Hamwee (LD)]

My Lords, the checks are to be made on known illegal immigrants. How are the banks and the Home Office to know, for instance, whether someone is here having outstayed a visa without reliable and comprehensive exit checks?

[Baroness Williams of Trafford]

My Lords, the Home Office has a list of people who are here illegally. Exit checks are only one part of the information we have to hand on who has left this country; the International Passenger Survey is another. Exit checks are therefore only one part of providing details of who is here illegally.

Children: Refugees

Debate between Baroness Williams of Trafford and Baroness Hamwee

Wednesday 13th September 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, we continue to work with the French Government to ensure that those children are also transferred.

[Baroness Hamwee (LD)]

My Lords, the UK’s homegrown family reunion rules, as it were, are much narrower than the Dublin III convention in that families are defined much more narrowly—limited to parents under the UK’s rules. What will happen to the Dublin III convention when we leave the EU?

[Baroness Williams of Trafford]

My Lords, when we leave the EU the Dublin convention will need to be reassessed under our own laws. Noble Lords will appreciate that this country has been a welcoming and safe haven for refugees and asylum seekers over the years—I have just given the staggering figure of more than 42,000 children since 2010—and we will continue to meet our commitment to those who need our help.

Psychoactive Substances Act 2016

Debate between Baroness Williams of Trafford and Baroness Hamwee

Wednesday 6th September 2017 Lords Chamber

[Baroness Williams of Trafford]

I do not disagree, and on previous occasions I have not disagreed, that evidence-based policies are absolutely the right way forward. In fact, WHO is undertaking some work of its own and it will report next year on the various elements of cannabis. We await with interest the results of that work.

[Baroness Hamwee (LD)]

My Lords, there was plenty of criticism of the Government’s approach to the Psychoactive Substances Bill, as it was, and the substances it covered. First, did the Government not seek advice on differentiating between the use and misuse of medicine? Secondly—this is one uncritical point about the Act—is it not a good thing that it is dealers and not users who are the focus of the Act, and should we not extend that approach to other areas of drug policy?

[Baroness Williams of Trafford]

I wish that I had been there for the passage of the Psychoactive Substances Act now. It would have benefited me greatly, although some people seem to have scars on their backs from it. We have been talking about nitrous oxide, which has a medicinal benefit. However, in this case it was clearly used for recreation.

Immigration Centre Detainees: Pay

Debate between Baroness Williams of Trafford and Baroness Hamwee

Tuesday 4th July 2017 Lords Chamber

[Baroness Hamwee]

To ask Her Majesty’s Government what plans they have to review rates of pay for work undertaken by immigration centre detainees.

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

My Lords, paid work is provided in immigration removal centres as a means to meet the recreational and intellectual needs of detainees and to relieve boredom. The work is not compulsory. All policies and processes are kept under review, and an internal review of the rate of pay of detainees is under way.

[Baroness Hamwee (LD)]

My Lords, does the Minister accept the irony of providing menial, albeit voluntary, work—as she says, it is to meet detainees’ recreational and intellectual needs and provide relief from boredom—when asylum seekers are not allowed to work at all? Is the rate of £1 an hour for people who have committed no crime something that as a society we can be proud of?

[Baroness Williams of Trafford]

My Lords, it is important to recognise that immigration detainees have lawfully had their right to work in the UK, if indeed they ever had one, curtailed by virtue of an immigration decision or by the decision to detain them. Therefore, their position regarding pay rights is not the same as for people who are not subject to immigration detention.

Terrorist Attacks

Debate between Baroness Williams of Trafford and Baroness Hamwee

Thursday 22nd June 2017 Lords Chamber

[Baroness Williams of Trafford]

My noble friend is absolutely right. We do not realise sometimes what far-reaching consequences the language that we use has. I am talking about all forms of prejudice or extremism et cetera. The noble Lord, Lord Singh, who is not in his place today, quite often talks in this House about religious literacy. We could all learn lessons when it comes to the consequences of the points that we make and how they might affect broader society. I also agree with my noble friend about schools being involved in some of the early education of our children. Some of the events of recent weeks have frightened children, and they are being misinformed, which may lead to them being hostile towards each other at a young age. I certainly know that after the Manchester attack, Muslim children of friends of mine felt more reticent on their way to school. Of course, local communities and local schools have worked very hard to educate in this sphere, but education starts in those early years.

[Baroness Hamwee (LD)]

My Lords, language is indeed important, and I wanted to ask about the use of the phrase “stamping out” extremism. It reflects understandable emotion, and indeed determination, but can stamping out achieve everything? Can the noble Baroness confirm that the extra staff referred to in the Statement will include psychologists, psychosocial experts and others who will work with no less rigour to approach the problem and address the issue? Secondly, I do not think that she replied, at any rate with any detail, to my noble friend’s question about the commission for countering extremism. Can she tell the House about the terms of reference and confirm, as I hope she will, that there will be wide consultation on those terms?

[Baroness Williams of Trafford]

I thank the noble Baroness for that question. I did not give much detail about the commission for countering extremism because I simply do not have much detail at this point. Recommendations will certainly come back to Parliament. There was a question in the other place earlier about Parliament feeling outside what the commission does, but Parliament will be consulted and have its say on the commission’s recommendations. As for stamping out extremism, will we always stamp out all types of extremism? No, we will not, but what we can do as a society is collectively be intolerant of extremism in our society, and the cohesion of our communities will, to a great extent, achieve this.