Public Order Bill

Baroness Chakrabarti Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

I strongly urge the Government to accept this amendment, which provides holistic protections to ensure that journalists, observers and bystanders continue to have access to protest sites in order to report on what happens and to monitor police powers. It is an essential part of our democracy. I beg to move.

[Baroness Chakrabarti (Lab)]

The Committee will imagine the daunting privilege of attempting to follow that speech from one of the most senior journalists—and indeed one of the greatest environmentalists—in the Committee and your Lordships’ House. I want to speak briefly to explain why we have Amendments 117 and 127A. The reason is my poor draftsmanship when we conceived Amendment 117, for which I apologise. Amendment 127A is an improvement on Amendment 117 because of a defect that was pointed out to me by the noble Baroness, Lady Boycott. Amendment 117 had protected journalists who were covering the policing of protests only, and, of course, we need to protect journalists who are covering protests as well as the policing thereof.

I would also like to take this opportunity to reassure the Minister that, notwithstanding my fundamental concerns about the Bill as a whole, and significant provisions within it, this journalistic protection in Amendment 127A—I am grateful to the other co-signatories and supporters across the House for understanding this too—notwithstanding our fundamental objections to various provisions that the noble Baroness, Lady Boycott, referred to, would not in any way wreck those provisions, objectionable though they may be for my part. All Amendment 127A would do is protect journalists where any police power, not just the police powers in this Bill but police powers more generally, are being used for the principal purpose of preventing their reporting.

I know that it is very hard in Committee to persuade a Minister to think again, but this is not a request to think again about the Bill in sum or in part; this is requesting a protection for journalists that is required in relation to even the police powers that currently stand. In the case of Charlotte Lynch, and other cases to which the noble Baroness, Lady Boycott, referred, journalists were arrested and detained under public order powers as they currently stand—not even the broader, blank-cheque powers to come.

So I hope that, in this Committee, those in the Box, and noble Lords and Ministers, will take pause for thought and think about whether we need a protection against current public order powers, and any to come, to ensure that the police are not using them to arrest journalists because they think that the reporting of protests per se gives the oxygen of publicity to protest and so on. Day after day, at Question Time in particular, Foreign Office Ministers stand at the Dispatch Box and—rightly and sincerely, in my view—criticise attacks on journalistic freedom across the globe. I think something like Amendment 127A would be a very important statement, putting that sincerity of Foreign Office Ministers into law in the home department.

So, I hope that noble Lords, Ministers, and Members of the whole Committee will really reflect on the noble Baroness’s speech.

[Lord Deben (Con)]

My Lords, I declare an interest as chair of the Environment and Climate Change Committee. I want to ask the Government to listen very carefully to this discussion. We have a very real issue when really serious matters, which threaten all of us, do not appear to some of us to be properly addressed. That is a very serious matter for any democracy, and those of us who are democrats do have to stand up for the rule of law and do have to say that extreme actions cannot be accepted.

But it has a second effect too, and that is that we have to be extremely careful about the way in which we deal with those extreme actions. I do beg the Government to take very seriously the fact that these extreme actions will continue, because people are more and more worried about the existential threat of climate change. The Climate Change Committee spends a great deal of its time trying to ensure that there is a democratic and sensible programme to reach an end that will protect us from the immediate effects of climate change, which we cannot change, and, in the longer term, begin to turn the tables on what we as human beings have caused.

It is not always easy to do that in the light of others who are desperate that we should move faster and that we should do more; who are desperate because they are seriously frightened and are not sure that those who are in charge have really got the urgency of the situation.

It is very difficult to imagine that we are not going to have to cope with the uprising of real anger on this subject. As a democrat, I want us to cope. As a parliamentarian, I want us to be able to deal with these issues and ensure that the public are not threatened. I echo the Deputy Chancellor of Germany, a Green Member of Parliament, who makes it absolutely clear that the kinds of actions we have seen in this country from Extinction Rebellion and similar things in Germany are not acceptable in a democracy.

The other side of that argument is that we have got to be extremely careful about the way in which we enforce the law and how we deal with this issue. Journalists play the key part in this. They must be there to report on what happens. It is in our interest as democrats that that happens. If they are not there and cannot say what needs to be said without fear or favour, none of us can stand up and deal with the arguments of those who argue that democracy does not work and that somehow they have to impose their will.

I want the Government to recognise the importance of this. In this country, a journalist must have access without fear or favour. The police must not treat them in a way that has happened again and again, and which must stop happening. As the noble Baroness, Lady Chakrabarti, said, it is not happening because of what is in this Bill, which in general I do not have an objection to; it is what happens in any case. The fact that the police could hold a journalist for five hours knowing that they were a journalist is utterly unacceptable. You cannot do that in a democracy—and nor can we talk to other countries about these things if that happens here and we do not do something to enshrine in law the fact that it should not.

Earlier, I had to deal with the question of not opening coal mines in order to be able to stand up in the world and show that we too will carry out what we ask other countries to do. This is another, even more serious, case of that. We cannot talk about repression if we in this country can be shown not to have protected journalists in these circumstances.

It is a terribly simple matter. We must put on the face of the Bill, referring to all actions, that journalists should be in the position that the noble Baroness, Lady Boycott, suggests. It may be that her amendments could be better done; it may be that the Government have a different way of doing it. The only thing that I ask, in order to protect democracy and ourselves—those of us who are moderates and believe in the rule of law—is that we need to have this assertion.

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[Baroness Chakrabarti (Lab)]

Before the Minister sits down, and with my real thanks for the sentiment that he expressed, does he concede that public order powers in general are cast in broad terms? Charlotte Lynch was arrested for the offence of conspiracy to cause a public nuisance—a fairly broad concept—and a number of broad police powers and offences in the Bill are triggered by an undefined concept of serious disruption.

Does the Minister also concede that senior voices in policing have said that journalists who give the oxygen of publicity to protests are part of the problem? By giving publicity, they are feeding the fuel of serious disruption. I know that the Minister disagrees with that proposition but, given that there has been so much performative legislation, and that there is apparently disagreement in the policing world about what is and is not feeding a serious disruption, why would the Government not take this modest step to ensure that no one should be arrested for the primary purpose of preventing their reporting of protest?

As a point of clarification, the difference between Amendments 117 and 127A is not the class of people they cover; it is the class of activity that is being reported on. Amendment 127A is an improvement on my poorer drafting of Amendment 117 because it refers to reporting protests themselves and not just the policing.

[Lord Sharpe of Epsom (Con)]

I agree with the noble Baroness that I do not agree with the proposition she just outlined from senior police officers. Having said that, I have not read those particular comments and cannot comment on the specifics. I go back to what I was saying earlier: it is not lawful to detain journalists simply there monitoring protests; it is against the law. The police made mistakes in these cases. As I said earlier, we agree it was completely wrong.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have not been present for earlier proceedings on this Bill because of other commitments, for which I apologise. For that reason, I will say only a very few words. With everyone else who has spoken, I completely oppose Clauses 19 and 20 and support the amendments in this group restricting their ambit and the ambit of SDPOs, for all the reasons considered and voiced by my noble friend Lord Paddick in opening and all other noble Lords who have spoken.

The so-called serious disruption prevention orders amount to punishment that does indeed involve serious disruption: serious disruption of individual citizens’ liberties, imposed without a criminal conviction and on proof to the civil and not the criminal standard, and which can last indefinitely. These proposals are entirely inimical to principles deeply embedded in our law and to notions of crime and justice that we all hold so dear. They are an insidious attack on civil liberties. They threaten a gradual, incremental encroachment on civil liberties—the very type of encroachment that can ultimately lead to the destruction of those liberties themselves.

[Baroness Chakrabarti (Lab)]

My Lords, I declare a historical if not a current interest as a Home Office lawyer from January 1996 until the autumn of 2001. I was occasionally and habitually a happy and unhappy inhabitant of the Box.

I agree with—I think—every speech so far in this significant debate. I would go further than some in saying that I was always against this blurring of civil and criminal process from the beginning when, I am sorry to say, Labour did it. I was against ASBOs, CRASBOs, control orders, TPIMs, football banning orders and all the rest, because they were always about lessening criminal due process. That is always the intention when you blur civil and criminal process by way of these quasi-injunctive orders. Whether it is minor nuisance or suspicion of being associated with terrorists, whatever the gravity of the threat, you will catch behaviour without proper criminal due process and then prosecute people for the breach.

Although we do not always agree, I must commend the noble Lord, Lord Anderson of Ipswich, in particular on a devastating critique of this use of copy and paste in my former department. Computers are wonderful things—until they are not. I will not labour the point, save to quote the right honourable Member for Haltemprice and Howden, who has done his best on this Bill in the other place along with Sir Charles Walker, from the Times this morning:

“Serious disruption prevention orders, or SDPOs”—


protest banning orders—

“can be given to anyone who has on two previous occasions ‘carried out activities related to a protest’ that ‘resulted in or were likely to result in serious disruption’”—

which is not defined—

“or even ‘caused or contributed to the carrying out by any other person’ of such activities. This is drafted so broadly so as to potentially include sharing a post on social media or handing out a leaflet encouraging people to go to a protest—even if you did not go on to attend that protest. Those issued with an SDPO can face harsh restrictions on their liberty, including … GPS tracking and being banned from going on demonstrations, associating with certain people”,

et cetera—and the orders are renewable indefinitely, as we have heard.

I am sorry if I have made noble friends feel uncomfortable. Do not think about these measures as they would be employed today. Think about how they could be used on the statute book by another Government, not of your friends and not of your choosing, in 20 years’ time. That is why, in a terrible Bill, Clauses 19 and 20 should not stand part.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by echoing what the noble Lord, Lord Paddick, said: all the arguments in all the amendments could become redundant if we support not putting Clauses 19 and 20 in the Bill. The strength of feeling demonstrated through this short debate leads me to believe that that may well be what we vote on when we come to Report.

I forget whether it was my noble friend Lady Chakrabarti or the noble Lord, Lord Skidelsky, who referred to this as copy-and-paste legislation. I think it was the noble Lord, Lord Skidelsky, who gave the analogy of chicken coops being moved around to replicate these civil injunctions. But perhaps the most powerful speech we have heard was from the noble Lord, Lord Anderson, who gave six examples of SDPOs being tougher than TPIMs, which really caused me to sit back and reflect on the meat of what we are dealing with here today.

My noble friend Lady Chakrabarti said she has always been against what she called quasi-injunctive orders—civil orders—going all the way back to ASBOs. This caused me to reflect, as a magistrate, on which of those orders I deal with when I sit in courts. I deal with some of them: football banning orders, knife crime prevention orders and domestic violence protection orders—I think most noble Lords who have taken part in this debate think DVPOs are an appropriate use of civil orders. But, of course, the list goes on. That is really the point my noble friend makes: there are a growing number of these civil orders that, if breached, result in criminal convictions.

To repeat what I said, here we are meeting a very extreme situation in which people planning to get involved in protest or to help people do so can potentially be criminalised for that activity. The nature of the potential offence being committed is different.

The noble Lord, Lord Paddick, went through in detail, for which I thank him, the nature of the injunctions in Clauses 19 and 20, so I will not go through all that again, but I will make one point that he did not make. We are concerned that there does not seem to be any requirement for the person involved to have knowledge that the protest activities were going to cause serious disruption. That lack of a requirement of knowledge is a source of concern for us.

In the debate on the previous group, my noble friend Lord Rooker and the noble Baroness, Lady Meacher, spoke about the comments of the Delegated Powers and Regulatory Reform Committee, and my noble friend quoted from them. The noble Lord, Lord Beith, spoke about the Secretary of State issuing guidance to chief police officers and how that could go down a road whose potential political implications, in a sense, I prefer not to think about.

I will quote briefly from other committees which have reflected on this legislation. First, the Joint Committee on Human Rights has said:

“Serious Disruption Prevention Orders represent a disproportionate response to the disruption caused by protest. They are likely to result in interference with legitimate peaceful exercise of Article 10 and 11 rights. The police already have powers to impose conditions on protests and to arrest those who breach them. Other provisions of this Bill, if passed, will provide the police with even greater powers to restrict or prevent disruptive protest.”


Another committee, the Constitution Committee, said:

“The purposes for which a Serious Disruption Prevention Order can be issued are broad. They can be issued not only to prevent a person committing a protest-related offence but also to prevent a person from carrying out activities related to a protest. Such a protest need cause, or be likely to cause, serious disruption to only two people. This gives the orders a pre-emptive or preventative role. Furthermore, ‘protest-related’ offence is not adequately defined in this part of the Bill nor … is ‘serious disruption’. This undermines legal certainty. We recommend that the meaning of ‘protest-related offence’ is clarified more precisely.”


The Minister has a big job on his hands to try to convince any Member of this Committee that he is on the right track. The amendments in my name—the clause stand part amendments—are the quickest way to put this part of the Bill out of its misery.

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Moved by

[Baroness Chakrabarti]

146: Clause 35, page 36, line 25, at end insert—
“(4A) No other provisions of this Act may be brought into force until a report by His Majesty’s Chief Inspectorate of Constabulary and Fire Services on improvements to the vetting, recruitment and discipline of specialist protest police officers is laid before and debated in each House of Parliament.”Member’s explanatory statement
This amendment, and another in the name of Baroness Chakrabarti, require parliamentary debate of a report by HMCI on improvements to the vetting, recruitment and discipline of specialist protest police officers before most provisions of the legislation may be brought into force. They further prohibit the bringing into force of the provisions in any police area under HMCI special measures.

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate those still here. We end, of course, with commencement, because that is the tradition. In moving Amendment 146 I will speak also to my Amendments 147 and 149. I also support Amendment 148 from the noble Lord, Lord Paddick, and Amendment 150 from the noble Lord, Lord Paddick, and my noble friend. We are dealing with the tension between ever more police powers on the one hand and the lack of equivalence in resources, training and vetting for policing on the other hand. This tension has been more and more exposed in graphic terms in recent months and years.

We began this evening with the eloquent speech from the noble Baroness, Lady Boycott, who spoke powerfully about incidents of abuse of police power in relation to journalists. We were assured, I think sincerely, by the Minister that it was far from the intention of the Government that those things happened. The Government apparently agreed with me that those were wrongful arrests, yet they have happened more than once. There are some in the police community who hold the view that this is a legitimate thing to do to prevent serious disruption, which is undefined in statute. So, with the amendments, we are seeking to ensure that there is some check on the new blank cheque that we are putting on the statute book, in addition to blank cheques that have already been put there by broad concepts such as conspiracy to cause a public nuisance, et cetera. That is what we are trying to get at.

Amendment 146 prevents the commencement of most provisions of the Bill until there has been

“a report by His Majesty’s Chief Inspectorate of Constabulary and Fire Services on improvements to the vetting, recruitment and discipline of specialist protest police officers”.

In another group, the Minister said, “If they’re trained, they’re trained”. So this is about ensuring that that is the case before additional power is granted. Amendment 147 is consequential to that.

Amendment 149 is crucial at a time when more than one police force is in special measures. It provides that provisions should

“not be brought into force for any area in which the police service is under special measures, the engage phase of monitoring, or other unusual scrutiny … by His Majesty’s Chief Inspectorate of Constabulary and Fire Services.”

That seems to be a perfectly reasonably check on the new powers and a perfectly reasonable request to make of Ministers, so I beg to move.

[Lord Paddick (LD)]

My Lords, I have tabled Amendments 148 and 150 in this group, and will speak also to Amendments 146, 147 and 149.

My amendments would mean that the new offences in the Bill—the delegation of functions and serious disruption prevention order provisions—could not come into force until the Government have laid before Parliament a report assessing the current capability of police services to use the provisions in those sections. Most of the 10 police forces inspected by HMICFRS said that the limiting factor in the effective policing of protests was a lack of properly trained and equipped police officers, not gaps in legislation. If that is already the limiting factor, what assessment have the Government made of the additional strain that the new provisions will have on already-stretched police officer numbers? What is the point of new legislation if the police do not have the resources to use it effectively—or, indeed, to use existing legislation effectively?

I can understand the principle behind Amendments 146, 147 and 149 tabled by the noble Baroness, Lady Chakrabarti; the right reverend Prelate the Bishop of Manchester has added his name to Amendments 146 and 147. Were it to be within the scope of the Bill, I too would support a moratorium on giving the police any further powers unless and until Parliament had a chance to consider a report by HMICFRS into the vetting, recruitment and discipline of all police officers, not just public order officers—particularly in forces that are subject to the “engage phase” of scrutiny by HMICFRS, commonly understood to be “special measures”. With so many forces requiring intensive scrutiny and intervention by HMICFRS, and public confidence in the police being so low, the police should not be given further powers until HMICFRS has reassured the public that they can have confidence in the police use of existing powers, let alone new ones.

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[Lord Sharpe of Epsom (Con)]

What I hope I said is that our expectation is that the provisions in the Bill will improve the ability of the police to “remove and deter protesters”, thereby alleviating some pressure on the police.

[Baroness Chakrabarti (Lab)]

That is very helpful. I agree with the Minister that police officers—we have a fine one in this Committee—and police forces should not be treated with a broad brush, but, and noble Lords will perhaps forgive me if I say it, nor should peaceful protesters. Hence, the question raised by the noble Lord, Lord Paddick, and hence the bulk of criticism of this entire draft legislation in this Committee. It is an unhappy privilege to be perhaps the last speaker in this Committee; I think I was the first. I am grateful to the Minister for his fortitude and courtesy. He wants to rise again.

[Lord Sharpe of Epsom (Con)]

I just want to clarify that I mean criminal protesters.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister but, of course, if the Government are able to keep expanding the definition of criminality, that does not give much cause for comfort about protecting peaceful dissent. I am none the less grateful to the Minister for his fortitude and courtesy throughout this three-session Committee. I hope that he and his colleagues will understand that what he has heard over these days and hours is very serious cross-party concern about these measures, reflected in vast sections of the country. I have no doubt that, after a good break and, I hope, a happy Christmas of reflection, colleagues will be back and some of these matters will definitely be put to the vote. With that, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

UK Asylum and Refugee Policy

Baroness Chakrabarti Excerpts

Friday 9th December 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I declare my interests as a member of the Justice and Home Affairs Committee chaired by the noble Baroness, Lady Hamwee, and as a long-time supporter of the wonderful charity Refugee Tales. It is a pleasure, as always, to follow the noble Lord, Lord Cormack, and to mark the end of the 90th birthday week of my noble friend Lord Dubs in this way.

My thanks, like everyone else’s, go to the most reverend Primate the Archbishop of Canterbury for convening this timely debate on the eve of Human Rights Day. I congratulate my noble friends—two maidens in Labour, if that is not a contradiction in terms—on their wonderful and contrasting maiden speeches. I look forward to the maiden speech of the right reverend Prelate the Bishop of Leicester, which will follow in a moment.

Like the noble Lord, Lord Cormack, I always think it is apt that Human Rights Day is so close to Christmas, for the reasons he gave: Christmas is a time when so many people all over the world celebrate the birth of a very special refugee child. However, it is worth remembering why we celebrate Human Rights Day. Noble Lords will remember that it was in October 1942 that the then Prime Minister, Winston Churchill, famously wrote to the predecessor of our present most reverend Primate in the following terms:

“The systematic cruelties to which the Jewish people—men, women, and children—have been exposed under the Nazi regime are amongst the most terrible events of history, and place an indelible stain upon all who perpetrate and instigate them. Free men and women denounce these vile crimes, and when the world struggle ends with the enthronement of human rights, racial persecution will be ended.”


He was inspirational if perhaps optimistic, as it turned out.

In remembering the failure, and there was some failure, of the Allied powers to give adequate passage and protection to those desperate to flee the Nazis—I remind noble Lords that Albert Einstein was denied asylum and had to go to the United States for it—came even after Kristallnacht in 1938 heralded a policy of systematic genocide. Refugee protection is therefore perhaps the most poignant paradigm of post-war human rights.

Given the emerging understanding of the sheer horror of the pre-war and war years, it is unsurprising that the refugee convention should have been one of the earliest priorities of the post-war international legal architecture. It brings detail and binding effect to supplement the right to asylum in Article 14 of the universal declaration, came into force in 1954 and has been amended only once. The 1967 protocol removed the original limitation of the protection to those fleeing events before 1951 in Europe, so the subsequent protection was always intended to be worldwide and permanent.

We have heard how the convention defines a refugee as someone with a well-founded fear of persecution for reasons of race, religion, nationality, membership of a social group or political opinion, who is therefore unable or unwilling to return to their country of origin. As we heard from my noble friend Lord Griffiths of Burry Port, it is built on three principles: non-discrimination, non-penalisation and non-return, so the protection should be applied without discrimination on the basis of race, religion or country of origin but also, as international law has developed over time, on other prohibited grounds such as sex, age, disability, sexuality, and so on.

It recognises that the most desperate genuine refugees may have no choice but to flee—as from the Nazis—via illegal means using false papers, false identities and clandestine transport across borders, in breach of ordinary immigration controls of nations. The convention prohibits penalising them, for example, for criminal offences relating to their seeking of asylum or by way of arbitrary detention. Crucially, the convention absolutely prohibits their return or expulsion to places where their lives or freedoms would be in peril.

It further provides for minimum standards for the treatment of refugees. They should have access to courts, primary education and papers including travel documents. The UN high commissioner is charged with supervising the operation of the convention, which signatory states undertake to co-operate with.

The refugee convention is a vital part of human rights machinery in providing at least a basic safety net when individual nation states, which bear the lion’s share of responsibility for guaranteeing rights and freedoms, fail in that duty. To undermine it in thought, word and deed, as so many Governments have done for so much of our still-young century, is to forget or ignore the worst atrocities of the last one.

Independent Cultural Review of the London Fire Brigade

Baroness Chakrabarti Excerpts

Thursday 8th December 2022 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask His Majesty’s Government what assessment they have made of the Independent Cultural Review of the London Fire Brigade, published on 26 November.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who are here to contribute and to listen. I am also grateful to the Minister for taking the trouble to have a word about some of these very serious issues yesterday, and especially to my noble friend Lady Thornton, with her long knowledge of the London Fire Brigade and expertise in equality issues. It is also very good to see the former Minister, the noble Lord, Lord Greenhalgh, in his place opposite. Further, I am very grateful to the London Fire Commissioner and to the general secretary of the Fire Brigades Union for taking considerable trouble to engage with me in recent days. This is in sharp contrast to my experience of raising issues around, for example, the Metropolitan Police under its previous leadership.

The LFB and the FBU are to be respected for not doubling down—neither resorting to complacent comments about a few bad apples and so on, nor suggesting that to seek to reform the culture in a brave and essential uniformed service is in any way to undermine it. Quite the contrary, they have both persuaded me that they do not support the so-called “hero” mythology—and that is in a heroic service where members literally run towards burning buildings.

I congratulate Nazir Afzal on a painstaking report that makes painful and even devastating reading. I am sure that all firefighters in London, or certainly the overwhelming majority of them, are decent human beings. As noble Lords will remember, the report was commissioned after a young black firefighter and FBU member, Jaden Matthew Francois-Esprit, took his own life in August 2020. That is really not very long ago for the family, and I want to acknowledge that. His family had substantial concerns that he had been subject to racialised bullying.

As I am not an expert on the Fire Brigade, and there are experts in the Chamber, I shall focus on the words of others, and start with the report itself. Mr Afzal said that his review

“found evidence that supports a finding that LFB is institutionally misogynist and racist. We found dangerous levels of ingrained prejudice against women and the barriers faced by people of colour spoke for themselves. Not only were they more likely to be subject to disciplinary action, less likely to be promoted and largely unrepresented at senior levels, but they were also frequently the target of racist abuse.”

He also found examples of how this was driving some people of colour out of the brigade. There was, he said,

“evidence that talented people, committed to public service were being lost as a result.”

He was encouraged to see an increase in diversity at board level, but felt that

“there needs to be more urgency in rooting out deeply prejudiced staff and inappropriate behaviour and attitudes because they undermine the hard work of the many decent, public spirited people in the Brigade.”

He also found that

“LGBTQ+ staff and people who are neurologically diverse are treated unfavourably compared to others.”

That said, he emphasised that he wanted to make an “important distinction”—his words, not mine—with similar problems experienced by the Metropolitan Police, where there have been

“flagrant examples of police officers misusing power and allowing prejudice to shape their actions”.

Mr Afzal’s team did not find the same level of “operational bigotry”. I think that what he means by that is that, for the most part, he found the very bad and the worst behaviour to be directed towards comrades and colleagues within the fire service, rather than towards the public. That is not comforting, but it is a distinction. But this is not a service that is arresting people and stopping and searching them; it is rescuing people—but apparently not rescuing them on a racialised or sexualised basis.

It is encouraging that, for all the issues that management and unions have in this country at the moment—and have had for some time—my understanding is that the union encouraged its members to participate in Mr Afzal’s investigations, to co-operate with the team and to give testimony, including in an anonymised way. That was no doubt important, because the strength of this report, and one reason why it will be very hard for people to deny its veracity, is that so many people participated in the investigation. Continued partnership between the commissioner and the leadership of the service and the union will be essential; I really urge that partnership on both institutions, and more generally.

The Fire Brigades Union told me that

“senior management alone cannot address the serious concerns set out in the conclusions of the independent review. Many of the cases and incidents reported would already have been known to … senior management and many will have been a result of … failings, either individually or institutionally … The situation is set against a background of abolishing equality targets and national strategy since 2010”.

The union feels that the Government have perhaps focused on taking advice from the National Fire Chiefs Council, but that the advice needs to be more broadly taken, including in partnership with the FBU. I ask the Minister to consider having discussions with the FBU as the Government continue to digest and formulate their response to this very painful report.

I also want to quote the commissioner, Mr Rowe, whose colleagues got in touch with me when they saw this Question for Short Debate on the Order Paper. Much to my surprise, when the commissioner came to meet me and my noble friend Lady Thornton a couple of days ago, it has to be said that he came unescorted and unaccompanied by colleagues, advisers and so on. That was interesting and refreshing. He asked me to share this:

“The independent review of LFB’s culture led by Nazir Afzal is written by the 2,000 members of staff who responded to him. In that, it is both unassailable and undeniable. In hearing our staff so clearly and in such numbers, we must for their sake and the communities they serve accept this report and its recommendations in totality. My commitment to the many thousands of courageous public servants we employ and the people of London we serve, is that we will take that courage so often demonstrated in response and turn inwards to face this problem, seizing it as an opportunity to make real change.”


I return, finally, to Mr Afzal’s report and some final words from him:

“Unless a toxic culture that allows bullying and abuse to be normalised is tackled then I fear that, like Jaden, other firefighters will tragically take their lives. This review has to be a turning point, not just a talking point. Everyone who works for the emergency services should be afforded dignity at work. That is the very least they are owed.”


I am sure that all noble Lords would agree with that.

Violence against Women and Domestic Violence

Baroness Chakrabarti Excerpts

Thursday 1st December 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I can tell the House that if we had not introduced the reservation, it would have taken even longer. As to why it took so long, no, I do not know the answer.

[Baroness Chakrabarti (Lab)]

My Lords, I appreciate that the Minister has said that the Government are considering removing the reservation, but can he explain a little about what the problem is? He will know, of course, that Article 59 does not give blanket residence to any class of women. It just says that a competent authority should consider their circumstances and, where necessary, give this vital protection to them.

[Lord Sharpe of Epsom (Con)]

Again, as I think I have explained, the Government are assessing the evidence that is coming back from the migrant victims scheme pilot programme.

Metropolitan Police: Crime and Misconduct

Baroness Chakrabarti Excerpts

Thursday 1st December 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute pleasure to follow the noble Lord, Lord Blair of Boughton—the noble and ever-civil Lord, I say, because I think we should search for an adjective for senior retired police officers who come to this House. It is rather unfair that they do not have an adjective in the way that some senior lawyers and military people do. We have sparred many times over the years, but I think always from a shared position of support for the rule of law. When we have disagreed, we have done so well.

It is always an absolute honour to speak in a debate with my noble friend Lady Lawrence, who is, in my humble opinion, the greatest race equality campaigner in British history.

In the remaining three minutes, I will give two thoughts. I have one for the Minister that I will keep short, because I fear that I have made his ears bleed too much of late—there is supposed to be some kind of law against that sort of thing. I also have one short thought for the noble Lord, Lord Lexden.

To the Minister, I say: we both agree that operational independence is totally essential for the police service, but, in my view, it does not remotely interfere with the operational independence of the police service to have a clear and improved legislative framework to aid with this disciplinary problem. A police discipline Bill is now required to aid the new Commissioner of Police for the Metropolis and other chief constables—I really believe that, and I am not someone who urges for unnecessary legislation. Governments of both persuasions are very quick and eager to legislate for police powers and then to blame the police when those overbroad powers lead to unintended and arbitrary consequences. The other side of that deal is surely that the Government should legislate appropriately for police discipline.

My short thought for the noble Lord, Lord Lexden, is simply that I thank him. I thank him for constantly reminding me in this place that support for the rule of law, properly constrained police powers and a proper holding to account of the sacred trust that we put in the police service are truly bipartisan matters in a constitutional democracy. We may sit on opposite sides of this Chamber, but he really has my undying solidarity, admiration and respect.

Manston Update

Baroness Chakrabarti Excerpts

Tuesday 29th November 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for his answer. I appreciate that he has been a Member of your Lordships’ House and therefore, I assume, in his ministerial post for only just over a month, so this is not intended as a personal criticism in any sense. However, I do not understand the logic of saying that this is a consequence of the speed with which Manston was emptied. How did the disease get into Manston in the first place? The Minister may say that people brought the disease from other countries and that it has been spreading within Manston, but we have been living for two years inside a global health emergency. Why has it taken this death and this scandal to now introduce health screening for people arriving at our shores?

Independent Cultural Review of London Fire Brigade

Baroness Chakrabarti Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

That is very clear; there is fairly evidently a failure of leadership. However, as I mentioned, I commend the leadership of Andy Roe, who commissioned a report into his own brigade. That was courageous and, as I say, he has committed to acting on all the recommendations.

There were two recommendations on getting rid of people. One is for a historical review of complaints, which will obviously investigate potential historical injustices. I imagine that will have some sort of component to do with removing people.

I am happy to confirm that the Mayor of London has operational responsibility for this, along with his deputy. That is on the website, and he claims it for himself. This is not blaming; it is merely stating a fact.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for his answer. He knows that I am always happy to examine issues of governance and new legislation where that is required, be it for the fire brigade or the police, which we will discuss in the debate of the noble Lord, Lord Lexden, on Thursday. But what is happening in our country? What is happening to the culture of kindness, decency and mutual respect among our fellow citizens and, it seems, I am sorry to say, particularly some men in our country? We now have these allegations—more than allegations; we have case after case in the Metropolitan Police, these new revelations about our much-needed and respected fire service and allegations of bullying in the Palace of Westminster, even at senior Cabinet level. The Deputy Prime Minister is now being investigated for bullying. Will we hear from the Minister for Equalities or from the Prime Minister—the first non-white Prime Minister—who has small daughters for whom he no doubt cares and is concerned? Will we hear some leadership on the culture of dignity and decency in our country?

[Lord Sharpe of Epsom (Con)]

I cannot speculate about what the Prime Minister might say so I shall speak for myself. I agree with the noble Baroness: I am disturbed by many of these reports that I have to stand here and talk about.

Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Baroness Chakrabarti Excerpts

Monday 28th November 2022 Grand Committee

[Baroness Chakrabarti (Lab)]

My Lords, what an absolute honour to follow that contribution from the noble Baroness, Lady Sanderson of Welton. Your Lordships can imagine what the contribution her fabulous communication skills and powers of analysis made to the work that we did on this report. I now have the daunting privilege of being the last member of the recently constituted Justice and Home Affairs Committee to contribute. We have also had two expert contributions from a technology expert in the noble Lord, Lord Clement-Jones, and of course the noble and learned Lord, Lord Hope. I will try not to repeat too much but will add just a little framing and a few points of emphasis.

First—this is relevant beyond even the vital business of this report—I had never sat on one of the House of Lords’ select committees before, and it was and continues to be a wonderful experience. This was a perfect subject to examine with the rigour of a Lords Select Committee in a totally cross-party way. It feels almost odd now to be a few swords away from the noble Baroness, Lady Sanderson of Welton, and the noble Lord, Lord Hunt, because on the journey that we went on together on this committee, there was no significant partisanship at all. Rights and freedoms and the rule of law should not be a partisan issue. That was definitely my experience of being on the committee of the noble Baroness, Lady Hamwee—she chaired it with the elegance of a society host, the creativity of a film director and the rigour of a judge.

I was reading in the press just today some comments from the American computer science genius and polymath Jaron Lanier. He was talking about the rise of these technologies in general, not about the criminal justice system in particular, and he told the Guardian:

“People survive by passing information between themselves. We’re putting that fundamental quality of humanness through a process with an inherent incentive for corruption and degradation. The fundamental drama of this period is whether we can figure out how to survive properly with those elements or not.”


That is a comment on the rise of these very exciting new technologies in general but I suggest that, of all the spheres in which artificial intelligence and these new technologies are being employed, the criminal justice sphere is special. There are great potential benefits, as we have heard, but real dangers as well. Why are the criminal justice system and the ambit of the home department so special? It is because we are talking about people’s rights and freedoms. We are thinking about the right to life and to protect people, our communities and victims and potential victims, but we are also talking about the gravest rights, freedoms and liberties of the subject. That came through very clearly in both the evidence to and the private deliberations of our committee.

I remind noble Lords that it was just over 40 years ago that, in response to the Brixton riots in this city, Lord Scarman produced his report because there was a crisis of trust and confidence in policing in so many of our communities. Not long after that legendary Scarman report, a Conservative Thatcher Government produced the Police and Criminal Evidence Act 1984. There was inevitably some controversy attached to it but, none the less, I would consider it a piece of human rights legislation, because it attempted to set a framework of principles and law for governing police power.

We would not dream today of rescinding or repealing that Act. It has been amended, but it is still on the statute book. The idea is that police power, while essential, needs to be regulated and consolidated in one place. Of course, new and intrusive technologies have emerged. The PACE codes have had to be updated and the legislation itself has been amended, but some basic principles and ideas of accessibility and transparency in the use of intrusive police power hold still, over 40 years later.

I do not believe that noble Lords and Ministers would dream of rescinding that, and nor should the Government think that such a framework is not needed today in relation to these new powers—these powers which we cannot even see being used, or understand, because they are effectively in a black box, or in a jar in the form of the pill but I cannot say what is in the pill that I am taking. That is why regulation and framework legislation is required.

It is simply not enough to rely on the current arrangement of broad police discretion and the occasional police witness to our committee or some other forum to say, “Oh, but you know: proportionality”. We are compliant with human rights proportionality as it if is a mantra. That is not detailed enough for regulation. It would not be detailed enough for powers of arrest and it certainly would not be detailed enough for the use of drugs. We need to get into the black box: we need to prescribe it and to decide what is legitimate and proportionate in the use of this technology and its design. Legislation is absolutely essential to avoid what the noble Baroness, Lady Sanderson of Welton, called the Wild West—because that is exactly where we are now in the use of this technology in the criminal justice system and, to some extent, at the border in relation to its intrusive use.

In addition to this framework legislation—the Police and Criminal Evidence Act and an AI Act for the 21st century—we need a national body that will do the prescription and kitemarking. There is no doubt that we need this because of the black box. Lay citizens and even parliamentarians cannot understand the technologies, read and decipher the algorithms, and understand whether coded bias is being baked in—which is happening.

I commend the Netflix documentary on facial technology that features the noble Baroness, Lady Jones of Moulsecoomb, from this House. It is a wonderful documentary. I hope that noble Lords, Ministers and their officials—who are passing them notes, probably saying “Yes, it’s a great documentary”—will watch it.

Kitemarking is essential before any procurement of these technologies and algorithms within the criminal justice system. It should not be left to local police officers, or even PCCs, to have lunch with some people who are selling their wares and decide what is a good deal or not.

In addition to the kitemarking of the product, there is a great opportunity for His Majesty’s Government and the United Kingdom in going down the road being advocated in our report. We could be world leaders in the kitemarking and regulation of this technology. In years to come, if we take up the recommendations from this committee, there could be countries all over the world that say, “We go for the UK AI in criminal justice model”. It is the equivalent of saying they want to contract in English law or in Delaware law, or whatever it is. This technology is being developed and used all over the world, and if we get ahead of the kitemarking and regulation game, others may contract into our arrangements and adopt our technologies and systems over time.

It is completely without justification, it seems to me, for private companies to be experimenting on our populations, including with their intimate data and with policing and intelligence and so on, and then claiming that they will not engage with transparency or legality because of commercial sensitivities. That is a swindle and a scandal, and it needs to end. We would not allow arms companies or drugs companies to behave this way; we certainly should not be allowing it in these deals that are being done in the 43 forces with these people in the Wild West—I will not say who it is that rides around on horses in the Wild West, but the point is made.

To conclude, we are just asking for this technology to be governed by the rule of law, for Parliament to step up and, crucially, for Ministers to step up, as their predecessors did in the Thatcher Government in the 1980s in response to the Brixton riots and the Scarman report. Only this time, we are asking that this be done before a scandal and before a crisis of confidence that reaches the kind of levels where it will be harder to use the technology in a positive way in the future.

Investigatory Powers Commissioner (Oversight Functions) Regulations 2022

Baroness Chakrabarti Excerpts

Thursday 24th November 2022 Grand Committee

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

My Lords, I beg to move that the Grand Committee consider the draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022, laid before the House on 19 October 2022, and the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022, laid on 18 October 2022.

Protecting our national security and keeping the public safe remains a top priority for the Government, as does ensuring that public trust and confidence in the exercise of investigatory powers are maintained. These two sets of regulations are concerned with the exercise of investigatory powers, and in particular with the important safeguards and oversight. The investigatory powers with which they are concerned are set out in the Investigatory Powers Act 2016 and the Regulation of Investigatory Powers Act 2000, which I will henceforth refer to as RIPA.

We are concerned with three key measures today. First, I will turn to amendments to the Covert Human Intelligence Sources Code of Practice. Throughout this debate I will refer to covert human intelligence sources as CHIS, and the code of practice itself as the CHIS code.

The CHIS code sets out the processes and safeguards governing the use of CHIS by public authorities and provides detailed guidance on how CHIS powers should be exercised and duties performed, including examples of best practice. The draft regulations before the Committee today will bring into force changes to the CHIS code. These changes have been made following amendments made to RIPA by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which I will refer to as the CHIS Act throughout today’s debate.

The amendments made to Part II of RIPA by the CHIS Act ensure that there is a clear and consistent statutory basis to authorise CHIS to engage in conduct that could otherwise be criminal, where it is necessary and proportionate to do so, having regard to the Human Rights Act and the UK’s obligations under the European Convention on Human Rights.

The draft revised CHIS code enhances the protection for children and vulnerable adults where they are to be authorised as CHIS in exceptional circumstances. There has been substantial consultation with charities and interest groups, and we have given due consideration to the valuable feedback they have provided on the changes we have made to the CHIS code.

The investigatory powers regulations will also make necessary changes to the Interception of Communications Code of Practice, which I will now refer to throughout the debate as the interception code. The draft revised interception code provides further guidance on the use of interception by public authorities that exercise such powers, also known as intercepting authorities.

The amendments to the draft revised interception code will reflect the Government’s long-standing position on serving interception warrants on cloud service providers and the enterprise services they provide to customers. These changes will provide much-needed clarity to relevant UK and US companies impacted by enterprise service issues. By enterprises, we mean companies, academic institutions, not-for-profit organisations, government agencies and similar entities that pay cloud service providers to store and/or process their organisations’ electronic communications and other records. When a cloud service provider is providing such services to an enterprise, the enterprise is responsible for providing accounts to its users and determining the reasons for which data is retained and processed.

A public consultation on the proposed changes was carried out between July and October. After further cross-governmental engagement on the draft revised interception code, three additional changes to the proposed revisions were made to provide further examples of the circumstances under which a warrant may be served on a cloud service provider instead of an enterprise customer, and to outline the obligations imposed by the Investigatory Powers Act regarding unauthorised disclosure to help protect national security.

Finally, I turn to the changes to the Investigatory Powers Commissioner’s oversight functions, as proposed in the Investigatory Powers Commissioner regulations. I will refer to the Investigatory Powers Commissioner as the IPC throughout.

These regulations place two areas on a statutory footing: first, the IPC’s oversight of the GCHQ equities process; and, secondly, compliance by members and civilian staff of SO15 at the Metropolitan Police Service and officers of the National Crime Agency with the guidance referred to as the Principles Relating to the Detention and Interviewing of Detainees Overseas. These areas have previously been overseen by the IPC and his office on a non-statutory basis.

The IPC has made it clear, and the Government agree, that he considers formalising his oversight responsibilities as being in the best interests of transparency and robust oversight. As a statutory authority, the parameters of the IPC’s remit are set by Parliament. These changes will provide greater public accountability and enable the effective discharge of the IPC’s responsibilities.

These regulations are vital for keeping the public safe by providing clarity and transparency around the use and oversight of powers. I hope the Committee will be able to support these measures and their objectives. I commend the draft regulations to the Committee. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I apologise for coming in when the Minister was already on his feet. I declare an interest as a council member of Justice, the all-party law reform group that took a significant interest in the CHIS Bill when it was going through the House. It was a very strange time: it was during lockdown when we had Zoom Parliament and so on, as the Minister will recall.

All noble Lords will appreciate that the legislation was—and remains—controversial. Whatever the arguments for and against its necessity, it is controversial to grant advance immunity from prosecution not only to police officers or direct officials and agents of the state but to those whom they run in the community, including in criminal fraternities. We have had the arguments in relation to the legislation itself. None the less, we all need to recognise the dangers that exist with that kind of advance immunity from criminal prosecution, including for quite serious crimes.

During the passage of the legislation the Government said that the Human Rights Act would be a safeguard, and the Minister has repeated that. But we are constantly told that the Human Rights Act is in jeopardy and, with the return of Mr Raab to the Office of the Deputy Prime Minister and as Justice Secretary, that remains in the balance. That needs to be on our minds when we consider these powers and the codes of practice made thereunder.

I will make one further point, about the consultation around the CHIS codes of practice. Justice informs me and other noble Lords that the consultation took place between 13 December 2021 and 6 February 2022—an eight-week period that included Christmas and serious restrictions because of the rise of the omicron variant. That was of concern not only to Justice but to other charities and NGOs that had concerns about the legislation and about victims’ rights in particular. One of their substantive concerns is that there is not enough in the current codes of practice to encourage victims to seek compensation in the event that they are harmed as a result of advance criminal immunity being given to CHIS.

Christmas is a problem for people who work in the sector in any event, because staff are on holiday and so on, but lockdown made it harder still. What Justice says about that is if the Home Office had compensated for the short festive period by going out proactively to consult potential interested parties, that consultation deficit could have been met. But that, I am told, did not happen. As a result, both Justice and the Centre for Women’s Justice, which of course had been very involved in supporting the female victims of the spy cops scandal, made their views known to the Home Office. That has not been a satisfactory engagement.

I know there is a limit to what can be done about this at this point but I intervene today to put this to the Minister. He perhaps was not the Minister responsible at the time of the consultation but might, none the less, keep this under review and possibly open up a line of ongoing communication with Justice and the Centre for Women’s Justice. Although these regulations are of course going to pass, these codes of practice need to be kept under review, as does the operation of this legislation with the codes of practice. I know from my dealings with him that the Minister is a reasonable person. After the regulations pass, I hope that he will perhaps meet these people to keep that conversation going and ensure that the operation of these provisions and vital codes of practice is monitored, and that the monitoring from the Home Office actively encourages involvement from those who work on victims’ rights and in the sector.

[Lord Paddick (LD)]

I thank the Minister for introducing these draft statutory instruments. As he said, the Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022 cover highly controversial changes made to the Regulation of Investigatory Powers Act 2000 by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 which enable the police, security services and other public bodies to task informants or agents to commit crime, where it is necessary and proportionate, for which they will be immune from prosecution and civil damages. As the noble Baroness, Lady Chakrabarti, has just said, that is not just the officers who task the individuals or authorise that tasking, but the individuals involved in the criminal acts themselves.

Taking up the point made by the noble Baroness, my understanding is that victims who have suffered as a result of the participation of CHIS in crime cannot make claims because the agents and CHIS are immune from being sued in the civil courts, as well as from criminal prosecution. In relation to the spy cops issues, can the Minister clarify whether that immunity from civil claims is not retrospective and that where undercover officers were inappropriately engaging in relationships with protesters and activists, they may therefore still be liable for civil damages?

The Act’s measures were fiercely debated in this House and, despite the safeguards that were brought in through amendments passed by it, they remain controversial—not least given the potential tasking of children and vulnerable adults to commit crime, and the danger and safeguarding issues surrounding the use of children and vulnerable adults in this way. Since the safeguards introduced in the CHIS Act came into force in 2021, can the Minister explain why it has taken until now to publish these codes of practice, which instruct the police and the security services on how they must comply with the 2021 Act?

The Explanatory Memorandum says:

“It is not considered that relevant public authorities or the IPC need to be provided with additional time to adopt different patterns of behaviour with a delayed commencement date”


as the changes contained in the revised codes of practice have been in force since 2021. If, as the Explanatory Memorandum says,

“the new provisions in the CHIS Act”

provide guidance

“covering the way that Criminal Conduct Authorisations … must be authorised and reflects the changes made to the use of children and vulnerable adults as CHIS”,

what is the point of the revised codes of practice? If they are important, even essential, to ensure the relevant authorities comply with the law, why have those authorities been allowed to operate without them since 2021, bearing in mind that there was no statutory basis for authorising CHIS to participate in crime before the 2021 Act?

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak first to the Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022. This SI updates the CHIS code of practice, following the 2021 Act, and the interception code of practice. We believe the first duty of any Government is to keep our country safe. The Labour Party recognises the importance of covert intelligence and the necessary, if at times uncomfortable, role of covert human intelligence sources and the contribution they make on our behalf.

The Labour Party supports the CHIS Act but, along with a number of Members from across the House, we pushed for additional safeguards with varying degrees of success. In particular, we pushed to limit the types of criminal conduct that could be authorised and for prior judicial oversight to be sought for an authorisation; we did so without success. However, the House was successful in adding some safeguards to the Bill by securing extra protection for children and young people and ensuring the notification of authorisations to the Investigatory Powers Commissioner. I pay particular tribute to the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Kidron, who played a leading role in securing these changes.

We support the regulations but I have a number of questions. The first concerns what the Explanatory Memorandum says about Section 72 of RIPA. It sets out the effect of the code. I will read out the further explanation:

“Failure to comply with the Code does not render that person liable in any criminal or civil proceedings. However, the Code is admissible in evidence in criminal and civil proceedings, and may be taken into account of any court”.


Can the Minister give any information on this? What would be the case if there was a failure to comply with the code? What could or would be the repercussions for those breaking the code?

Further, there is a requirement for public authorities

“to ensure that any criminal conduct to be authorised is compliant with the relevant Articles of the European Convention on Human Rights and the Human Rights Act 1998.”

How will that be impacted by the proposed Bill of Rights Bill? My noble friend Lady Chakrabarti also raised the prospect of rescinding the ECHR even though Dominic Raab repeatedly says that he does not want to do that. Nevertheless, doubts and scepticism persist.

On children, I note that most of the consultation responses focused on protecting children and vulnerable adults. I can see that the Government have reflected on those submissions. It is right that children are authorised as CHIS sources only in exceptional circumstances, and that the duty of care owed to the children in this context is taken extremely seriously.

I have received an extensive briefing from Just for Kids Law, as I am sure other noble Lords have. Although I want to make it clear that I do not agree with its central proposition that children should never be used for CHIS, it raised a number of valid questions that I will repeat for the Minister now. Specifically, paragraph 4.14 of the draft code refers to Articles 8 and 9 of the juveniles order. It is not clear what this refers to: the juveniles order has only six articles. It would assist if the Minister could clarify what is meant by this reference.

Secondly, there is a continued discrepancy between the code and the primary legislation. The juveniles order sets out the protections given to those aged under 18 who are used as a CHIS. It is referenced at paragraph 4.4 of the code of practice. The protections in the order now differ from the protections set out in the code of practice. Will the Government amend the order to reflect the new code of practice?

My third question is about the test for the appointment of an appropriate adult for a young person. A new test has been written—this goes to the point raised by the noble Lord, Lord Paddick—so can we have confirmation that the appropriateness of that test for appointing an appropriate adult for somebody aged under 18 or who is vulnerable will be kept under review? My experience of youth courts is that the guidance for appointing appropriate adults tends to be a bit rigid, so my view is that it needs to be reviewed to see whether it is being used appropriately in all circumstances.

My noble friend Lady Chakrabarti raised a couple of points. Specifically, as in the Justice briefing, the draft code of practice makes no mention of CHIS acting as agents.

[Baroness Chakrabarti (Lab)]

I beg your pardon; what I meant was agents provocateurs.

[Lord Ponsonby of Shulbrede (Lab)]

Right, so the point is about provoking others to commit criminal acts. What would be the view of that?

I remember the original debates when somebody—I am not sure whether it was the noble Lord, Lord Paddick—gave a very evocative example that hit home for me. It was of a 17 year-old girl being run as a prostitute by her older drug-dealing boyfriend. I understand that it was the noble Baroness, Lady Hamwee, who gave that example and spoke about the appropriateness of engaging that girl to effect a conviction of her boyfriend. It was obviously an extremely difficult case but it illustrates the sensitivity and difficulty of the cases with which we are dealing.

The noble Lord, Lord Paddick made another good point, which I will repeat. It was the question of whether the immunity that would be available to CHISs for some action would be retrospective, particularly in the context of women who have been in relationships with officers who were CHIS officers and may well be seeking compensation for those relationships. I would be interested to hear an answer from the Minister on that.

[Baroness Chakrabarti (Lab)]

On the point about agents provocateurs—that is, CHIS who are not just having to commit criminal acts to keep their cover but are perhaps actively encouraging others to commit crimes—the concern is not just about the 17 year-old girl in the prostitution example. There is a big concern here from the trade union movement and the protest movements that CHIS could be actively encouraging peaceful protest movements to tip into criminal acts. The concern is that the code should at least make it clear that that kind of agent provocateur behaviour would be unacceptable. Will the Minister consider adding that to the code?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, if I might move on to the other SI with which we are dealing, we support the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022. This SI provides the commissioner with oversight of compliance by members and civilian staff of the Metropolitan Police Force in relation to counterterrorism legislation, and officers of the National Crime Agency with guidance referred to as the Principles Relating to the Detention and Interviewing of Detainees Overseas and the Passing and Receipt of Intelligence Relating to Detainees. The regulations take two functions where the Investigatory Powers Commissioner currently exercises oversight on a non-statutory basis and places them on a statutory footing. This change has been requested by the IPC himself; I thank Sir Brian Leveson and his team for the work they do.

The National Security Bill has passed through the other place and will soon start here in the House of Lords. My honourable friend Holly Lynch has sought legal opinion on some of the provisions in this SI in relation to the oversight of GCHQ, in particular that the new regulations stipulate that the oversight functions of the commissioner include keeping under review the exercise of GCHQ processes for whether information about vulnerabilities in technology should be disclosed. I think the Minister made that clear in the other place so, on that basis, I welcome this extension of the oversight powers allocated to the commissioner. It is appropriate that these powers are put on a statutory footing.

Public Order Bill

Baroness Chakrabarti Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, in moving Amendment 110 in my name, I will speak also to my Amendments 111 to 113 and 116 and the other amendments in this group. These amendments are about a power to be given to the Secretary of State to bring civil proceedings to curtail or prevent protest, including potentially with a power of arrest attached, if the Home Secretary “reasonably believes” that activities are causing or likely to cause disruption to the use or operation of any key national infrastructure or have a seriously adverse effect on public safety in England and Wales.

Amendments 110 to 112 in my name would increase the evidential test to

“has reasonable grounds for suspecting”

to ensure that the Secretary of State has to set out before the court the exact evidential grounds for her application. In meetings with the Minister and officials on the Bill, it was explained that protests could affect a number of different operators or local authorities and that it would be in the public interest to have an overarching injunction in such cases.

The HS2 nationwide injunction seems to prove that such an overarching injunction is available to those concerned without the intervention of the Secretary of State but, in any event, Amendment 113 is designed to ensure that the power is used if, and only if, it is not reasonable or practical for a party directly impacted by the activity to bring civil proceedings, and to ensure that the Secretary of State does not use the power where any party directly impacted does not consider such proceedings to be necessary. My Amendment 116 is designed to ensure that a power of arrest cannot be attached to an injunction simply on the basis that the conduct is merely

“capable of causing nuisance or annoyance”.

This is in Clause 18(2)(a), which the amendment removes from the Bill.

We wholeheartedly support the additional checks and balances proposed by the noble Baroness, Lady Chakrabarti, in her Amendments 114 and 115. I beg to move Amendment 110.

[Baroness Chakrabarti (Lab)]

My Lords, during Second Reading a number of noble Lords, including those who do not share my views of the Bill more generally, expressed significant scepticism about the new Clause 17 provision for the Home Secretary to bring civil proceedings against protesters, instead of being brought by directly affected oil, gas or transport companies, and so on. I share these concerns at the politicisation of both policing and civil disputes, and therefore oppose Clause 17 standing part of this Public Order Bill.

Not only is it constitutionally dubious for a politician to be standing in the shoes of the police in relation to the criminal law, or of affected companies in relation to the civil law; it also raises questions about this use of considerable sums of taxpayers’ money in expensive litigation that could and should be brought by those who profit from fossil fuel or other carbon-intensive development, and no doubt factor legal fees into their budgeting. The lack of transparency required by the new Clause 17 also brings a risk of corruption, in the event that the relevant firms should choose to donate to or otherwise “promote” a Home Secretary amenable to seeking civil legal proceedings on their behalf.

It should be noted that under Clause 17(5), the Secretary of State must only

“consult such persons (if any) as the Secretary of State considers appropriate, having regard to any persons who may also bring civil proceedings in relation to those activities.”

No transparency in the Secretary of State’s discussions, or non-discussions, with these “persons”—namely, large companies—or consideration of why they should not finance their own legal proceedings, is required. Never has the word “must”, in a provision supposedly creating a duty upon a Secretary of State to consult, constituted such a toothless tiger or illusory protection from the potential abuse of public money and political power.

In addition to supporting the amendments proposed by the noble Lord, Lord Paddick, I propose Amendments 114 and 115, which would create safeguards against corruption and abuse. They require the Secretary of State to publish the reasons for any decision not to consult; the results of any consultation; any representations made to the Secretary of State as to a proposed exercise of the new power; an assessment of why other parties should not finance their own proceedings; and assessments of why any proceedings have been brought by the Secretary of State at public expense, rather than by private companies themselves. Such publication will occur both each time an exercise of the power is considered, and annually on an aggregate basis.

Clause 17 is both unnecessary and undesirable. If it really must stand part, so must the vital safeguards previously referred to, but also those in Amendments 114 and 115, which I commend.

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I thank the noble Baroness, Lady Chakrabarti, for tabling her thought-provoking Amendments 114 and 115. I understand that the amendments seek to create a requirement for the Secretary of State to publish an annual report regarding the uses of the powers in Clause 17, containing justifications and explanations for decisions taken in the use of such powers. While I agree with the noble Baroness on the need for checks and balances, I am inclined on this occasion to question the necessity of these amendments. There are currently sufficient measures in place to ensure that the powers granted by Clause 17 are used appropriately and proportionately. It is, of course, always for the courts to review the appropriateness of a civil claim and to grant appropriate relief, and we are satisfied that these are sufficient safeguards. There is also a recognition that civil proceedings are done in public and that the judgment of the court would be available. However, I recognise the intent behind the noble Baroness’s amendment and will consider whether further clarity around the process whereby a Secretary of State may seek to initiate such proceedings could be provided.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. He made a kind offer to consider this argument; when he is considering it, could he think about transparency versus corruption and the public expense? He has made his arguments about the new co-ordinating role of the Secretary of State, standing in the shoes of a consortium, if you like, of local government, business and central government, but there is still this issue about transparency versus corruption. When he takes this away, will he think about a scenario in which a press baron or an oil baron—whichever noble Baron, or ignoble Baron, it is—says to a Home Secretary, or a putative Home Secretary, “I’m sick of these legal fees, and I think it would be a jolly good idea if the Home Department brought these proceedings against these pesky demonstrators in my shoes”? Will he think about the risks to public trust in the good use of public money that might result if there is not transparency about this new power?

[Baroness Jones of Moulsecoomb (GP)]

My Lords, before the Minister resumes his speech, may I ask him about a word he used? I do not know if I misheard—and I have quite a good vocabulary—but I think he used the word “dubiety”. Does that mean dubiousness?