Police, Crime, Sentencing and Courts Bill

Lord Hayward Excerpts

Lords Hansard - part two & Committee stage
Wednesday 27th October 2021 Lords Chamber

[The Lord Bishop of Bristol]

My Lords, some common themes are emerging. I rise in support of Amendment 107, which was tabled by the noble Lord, Lord Rosser, and to which I have added my name, alongside that of the noble Baroness, Lady Jones.

The inclusion in this Bill of immigration officers among those authorised to undertake digital extractions strikes me as extremely troubling, particularly in the absence of significantly more detail on the safeguards, including the meaning of “agreement” and the specificity of the data sought, and the relevant training and expertise of these officers. Voluntary provision and agreement to extract data must surely rely on a level of informed consent. If it is not, then “voluntary” and “agreement” are just empty words.

For vulnerable asylum seekers and other migrants who come to the attention of immigration officers, it is not remotely clear how such informed consent is to be assured under what is currently proposed. Asylum seekers have, by their nature, often experienced negative reactions with agents of the state. In 2020, the top five most common countries from which people were seeking asylum in the UK were Iran, Iraq, Albania, Eritrea and Sudan. These are, to state the obvious, not countries where citizens, never mind those who flee as asylum seekers, tend to develop trusting or positive relationships with state officials, particularly those in uniform. To this experience in their countries of origin we have to add the fear and unfamiliarity of their situation on arrival in the UK. The hostile environment and its successor policies have been immensely successful in at least one regard: many migrants have come greatly to fear our immigration officers and the powers that they possess.

In outlining what I have said so far, I am trying to explain the extraordinary power imbalance, to say nothing of the language barriers, in place between an immigration officer and asylum seeker. It is hard to imagine how, under such a scenario, informed consent for voluntary provision and agreement could legitimately be established. It is particularly hard to imagine when we see no safeguards provided for assuring what is meant by such agreement or on what specific data it is deemed legitimate to extract. It is crucial to get this right. The data-extraction provisions of the Bill look to place current and future practice on a statutory footing. This is important, because the present practice of immigration officers is extremely concerning.

When the Bill was in Committee in the other place, as we have heard, the Member for Rotherham raised an all too common example of an asylum hostel containing some 50 to 100 men, all of whom had had their mobile devices seized as they entered the country. This was done without clear explanation or debate, and certainly without informed agreement or consent. The men in question did not know what, if anything, had been taken from their phones or accessed. This is proving to be a common story expressed by those working in the refugee and asylum sectors. It has simply become part of the process that mobile devices will be confiscated, without clear explanation or consent.

As we have heard, data extraction is a particularly serious privacy interference. It ought to require a high bar of necessity to be reached to justify any such intrusion, and strict parameters on what data is being secured and for what purpose. By contrast, the Home Office has proven consistently reluctant to explain current processes, and I hope we might engage with it on how to take this forward.

As the lead Bishop on modern slavery and one of the Lords spiritual who works on migration issues, I am all too aware of the insidious evil presented by human trafficking and people smuggling. I therefore sympathise hugely with the Home Office, as it tries to counter organised crime in these areas. I do not doubt that there are cases in which data extraction could prove useful in that ongoing battle. However, I suggest in concluding that we can achieve the benefits of such activities without such widely drawn and unchecked powers for immigration officers. I hope the Government will engage in a full process of exploring how any relevant data can be obtained in a way that is consensual, limited, targeted and carried out by professionals with sensitivity training and expertise. In particular, I hope to hear more about how the extreme power imbalance produced by an immigration officer doing this extraction can be better addressed than the Bill does at present.

[Lord Hayward (Con)]

My Lords, as my noble friend Lady Wyld did earlier, I apologise for not being present at Second Reading. Like my noble friend, I had been diagnosed as a Covid sufferer only a few days beforehand and was unable to participate in the debate. Therefore, if I go slightly wider than one or two amendments, I hope the Committee recognises why.

In making my comments, first, I emphasise that what I say in no way minimises the impact that the failure to tackle rape and sexual assault is having on society, particularly women and young females. There is no doubt that there is a major problem. I think that all Members of this House, including me, are only too closely aware of cases of rape and sexual assault that have had a dramatic effect on the individuals concerned.

I take this opportunity to emphasise that this is not solely a women’s issue. This issue affects men in society as well, particularly gay men. I noticed that as I started that sentence the noble Lord, Lord Paddick, was nodding; we are particularly conscious of the impact that sexual violence and rape have in the gay community as well as among females. To everybody, not just those in this House, I say this: the regularity with which I hear this issue being discussed as if it is a female-only issue causes me enormous concern and, I think, causes a lot of people hurt.

Reference has been made to rape cases and non-reporting and people being deterred from reporting. I know of one particular case, very close to me, in which somebody was subjected to an attempted rape. They chose not to report it, not because they would have had to disclose their mobile phone but because they took the view that the police’s response would be, “Well, you put yourself in that position in the first place”. We have all heard that phrase in relation to women, but in this case, it applied to a man. It had no less effect, but that man took that decision under those circumstances.

On comments in relation to the police, in these debates, we always tend to refer to their failures. There are failures—there is no question about that—but we should also pay credit to the thousands of police across the country who handle this difficult subject incredibly well. Many of them are family men; they know what is going on. It is an incredibly difficult set of circumstances for them as well as for the individual concerned.

More specifically on mobile communications, I made my maiden speech in the other place several decades ago on telecommunications. You can download everything off a phone, as long as it has not been specially hidden in some way or other, in a matter of minutes, certainly a matter of hours. You need to hold a phone for a long period of time only if you have serious criminals who know how to hide the contents of the entries on it. I implore people not to exaggerate the delays that one is talking about. We all use our phones as our livelihood, as the noble Baroness, Lady Chakrabarti, said, but downloading can be undertaken incredibly quickly.

In conclusion, I now want to take a different route in the conversation. In doing so, as I say, I do not underestimate the problems of society regarding sexual assault and rape victims. However, can the Minister clarify how this legislation or other legislation will deal with individuals who are falsely accused? There has been much discussion this evening about victims, but there are all too many such cases—not a substantial number, but there are many cases. For example, noble Lords can think of the number of people in this Palace who have been found not guilty when cases have gone to trial. What rights do those people who are falsely accused have in terms of seeking access to their accuser’s phone—or, rather, what rights do the police have in gaining access? It is all too easy for somebody to make a false accusation and then say they have lost their phone or delay handing it over. If you delay by 12 months, the records have disappeared in the vast majority of circumstances because the phone companies do not store them for more than that. There are a series of questions that need answering, and in the same way as we deal with genuine victims, we need to give consideration to those who are falsely accused and face many problems.

--- Later in debate ---

My noble friend Lord Hayward asked the very valid question about someone being falsely accused and what action can be taken where a false allegation of criminal conduct is made against someone. Where there is evidence of a false accusation, that in itself can be a crime—for example, the common-law offence of perverting the course of justice—and the police would be expected to investigate in the normal way.

[Lord Hayward (Con)]

I thank my noble friend for that answer, but I ask her to clarify her use of the words “where there is evidence”. In these circumstances, somebody who is accused will be making a counteraccusation, or a counterobservation, and therefore there may not be evidence. The evidence is likely to be on the phone in modern-day communications.

Police, Crime, Sentencing and Courts Bill

Lord Hayward Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I thank my noble friend Lady Bertin for her comments. I share entirely my noble friend’s commitment to ensuring that best practice in this area is properly communicated to duty holders. That is what will make it effective. I look forward to working with the domestic abuse commissioner’s office and wider stakeholders to develop the statutory guidance which will be subject to public consultation following Royal Assent. We intend to develop options and include detail on monitoring progress in our statutory guidance. In addition, specified authorities will be requested to keep their strategy under review. PCCs will also have a discretionary power to monitor performance, and routine inspection programmes undertaken by individual inspectorates in future may also consider the organisational response to local serious violence issues.

As my noble friend and others will know, the statutory guidance under Clause 18 already includes references to sexual offences, domestic abuse and gender-based violence. In updating the guidance ahead of the consultation, we will explore whether we should revise it to make it clear to specified authorities that they should consider violence against women and girls, including domestic abuse and sexual offences, in determining what amounts to serious violence in their areas.

In terms of stalking, we are very clear that the reference to domestic abuse to be added by the government amendments will encompass stalking in so far as it takes place in a domestic abuse context. Noble Lords will know that while many stalking offences take place in a domestic abuse context or involve violent behaviour, it is not the case in all instances. We have not expressly set these out in the Bill because we are seeking to avoid an exhaustive list of crime types, partly to allow local areas to take account of new and emerging forms of serious violence as they develop and are identified, and partly to recognise the geographical difference in the prevalence of these types of serious violent crimes.

As I have said, the draft statutory guidance for the duty sets out that there is flexibility for local areas to take account of their evidence-based strategic needs assessment and include in their strategy actions which focus on other related types of serious violence, including gender-based violence, which includes all forms of stalking as well as many other forms of violence against women and girls. We can look to make that clearer in the next iteration of the guidance, which we will be consulting on, as I have said. This is a view shared by the domestic abuse commissioner, and I put on record—following my noble friend’s thanks—my thanks to her for her continued engagement in this area.

[Lord Hayward (Con)]

My noble friend referred to sexual violence against women and girls. Can I clarify that this legislation actually covers all aspects of sexual abuse and stalking, not just that against women and girls?

[Baroness Williams of Trafford (Con)]

I am glad my noble friend has mentioned that. We have said right from the outset that it covers both sexes, but this violence is predominantly meted out to women and girls; that is why noble Lords sometimes question this. But, of course, anyone who is a victim of domestic abuse or serious violence is captured by this.

The noble Baroness, Lady Jolly, asked me about the initiatives we have in place. We have tripled the funding we provide to the National Stalking Helpline, run by the Suzy Lamplugh Trust, this year. The additional funding is enabling the trust to answer more calls and expand its advocacy service. I set out in Committee the other actions we are taking to tackle stalking, and I refer the noble Baroness to those comments. Our forthcoming domestic abuse strategy will include stalking as well.

On that note, I hope that I have answered my noble friend’s questions and those of other noble Lords. I conclude by thanking my noble friend and the commissioner, and I beg to move.