Illegal Migration Bill

Debate between Baroness Chakrabarti and Lord Paddick

Committee stage
Monday 5th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute privilege to follow such a distinguished former Permanent Secretary to the Foreign department. To return to my noble friend’s amendment, it may seem a little counterintuitive or surprising for me to welcome a probing amendment about removal and about a duty to negotiate removal agreements, but I do. The reason is that there is actually a greater and stronger link between the principles that we have been discussing and the practice that my noble friend is considering here, because in this neck of the woods, in particular, the two go together.

I say, with respect to the Committee, that it would have been wise for the Government to have thought about a duty to negotiate removal agreements before they proposed to legislate for a duty to remove. The sin is to have duties to remove with nowhere to remove people to, and duties to detain with no ability to remove, because that leads to indefinite detention.

There were all the arguments that we had on the last illegal Bill, and the arguments that we will have again about whether refugees and asylum seekers should be allowed to work after a period of time. People argued about pull factors, and some of us said that there were push factors, not pull factors. But if people’s claims were being considered quickly, including of those who did not qualify for asylum—who were genuinely illegal migrants and never qualified for asylum—some of us would have no problem with the principle or practice of having a short period of arrest and detention for the purposes of facilitating a lawful removal.

My noble friend Lord Coaker has really hit the nail on the head. What is the practice here? If there is no practical agreement to remove people to whichever country they are from, and people are in practice irremovable, that is where the cruelty comes in. That is a cruelty towards people who are detained for lengthy periods, quite possibly at great public expense, in inappropriate accommodation; this could include accompanied or unaccompanied children not being housed or detained appropriately, not being educated, and so on. That is the sin—the terrible maladministration and lack of good practice, which is then translated into this culture war via more draconian legislation for a general election that will no doubt be sloganed, “Stop the boats”. We do not stop the boats, but we do not welcome the vulnerable people either, so we perpetrate this great swindle on the British people. We toxify a debate that needs to be handled much more temperately, and we do not achieve anything very much at all.

The final link between principle and practice in this area is that, in this amendment, we are talking about a duty on the Secretary of State to negotiate these practical removal agreements for those people who do not meet the tests and do not qualify in the end as refugees. In this probing amendment we are talking about that duty and asking whether it does not need to be a duty because the Secretary of State genuinely wants to negotiate. To go back to what the noble Lord, Lord Patten, said before the break, whether that is the case or not, who will negotiate with us? We have heard some flummery from the Benches opposite about how international law is not real law—“We have a dualist system and let me not give you a law lecture, but it’s not real law, it’s only international law”. If our word is not our bond, who will negotiate with us?

There is currently a contradiction at the heart of government between those who want to be leaders on the world stage, with all the challenges that have to be met internationally at the moment, and those who want a culture war. My understanding is that the Prime Minister is now saying not only that we are going to be part of the Council of Europe and honour our international commitments but that we are going to be the architects of new ones. London is apparently going to be at the heart of regulating artificial intelligence—this is where it is all going to happen. But why should anyone allow us that moral leadership on the world stage, if we will not honour international law?

I look forward to the answers to my noble friend’s questions about the moment when principle really does need to meet practice.

[Lord Paddick (LD)]

My Lords, perhaps the Minister can help us here. Is not it the case that, without removal agreements, the Bill is likely to make the current situation worse in terms of costs to the Exchequer? As the noble Baroness, Lady Chakrabarti, has said, if people are not able to work, and they are not allowed the right to remain but cannot be removed, they will have to be looked after by the state. The difficulty that the Minister has is that, without an impact assessment, there are all sorts of organisations that are filling that vacuum. The vacuum was filled at the weekend—and the estimated additional costs of this Bill were £3 billion to £6 billion in additional accommodation needed to detain those people who could not be removed.

Public Order Bill

Debate between Baroness Chakrabarti and Lord Paddick

Report stage
Monday 30th January 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, now we turn to the offence of interference with the use or operation of key national infrastructure, which is clearly a matter of considerable concern to the life of the community and to the balance that we have been discussing between peaceful dissent and the rights and freedoms of people in a democratic society.

The definition of key national infrastructure becomes very important in relation to a new criminal offence which attaches to it a maximum of 12 months in prison. My Amendment 38 is perhaps fairly predictable for an amendment in your Lordships’ House: it seeks to remove the Secretary of State’s ability by regulations or statutory instrument to amend the definition of key infrastructure. As your Lordships will understand, it would be just too easy for any Government, now or in the future, to amend the definition in a way that was not proportionate, and to add matters and items to key infrastructure that the public did not consider to be key. On principle, I do not think that criminal offences should be created or amended in that way by Henry VIII powers. That is the reason for my Amendment 38. It is the sort of amendment that I would have tabled to any number of criminal justice Bills. It is not specifically about protest; it is an objection of principle to amending important definitions within criminal law in that way.

Amendments 39 and 40 in the group, tabled by the noble Lord, Lord Paddick, similarly try to tighten important definitions, but I will leave him to speak to those. I beg to move.

[Lord Paddick (LD)]

My Lords, as the noble Baroness, Lady Chakrabarti, just said, I have Amendments 39 and 40 in this group. As we discussed in Committee, while there may be some sympathy for measures designed to stop protesters blocking motorways, airport runways and railway lines, the legislation as drafted—covering anyone who interferes with the use or operation of any key national infrastructure, including being reckless as to whether it could be interfered with—could criminalise those legitimately protesting on railway station forecourts or concourses or those protesting outside or inside airport terminal buildings who do not intend directly to impact train journeys or flights. Clause 7(4) is extraordinarily broad in its scope, in that anything that prevents the infrastructure being used or operated to any extent for any of its intended purposes is covered.

For example, those awaiting the arrival of a controversial figure whose presence is arguably against the public interest, and who wish to demonstrate their objection to the person’s presence in the United Kingdom, should be excluded from the overbroad remit of this offence. I accept that they may be committing other offences, but to be prosecuted for interference with the use of key national infrastructure when this is clearly not the purpose or intention of the protest does not appear to be right. Amendments 39 and 40 seek to restrict the offence to infrastructure that is essential for transporting goods and passengers by railway and air respectively. We support Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, on the regulation-making powers of the Secretary of State to add, alter or delete the kinds of infrastructure covered by this offence.

Public Order Bill

Debate between Baroness Chakrabarti and Lord Paddick

Committee stage
Tuesday 13th December 2022 Lords Chamber

[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.

Investigatory Powers Commissioner (Oversight Functions) Regulations 2022

Debate between Baroness Chakrabarti and Lord Paddick

Thursday 24th November 2022 Grand Committee

[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?

Public Order Bill

Debate between Baroness Chakrabarti and Lord Paddick

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.

Public Order Bill

Debate between Baroness Chakrabarti and Lord Paddick

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I now get the opportunity to congratulate and welcome the Minister —the noble Lord, Lord Murray—to this Committee. I have had the opportunity to welcome him in other ways before, but it is important to be engaged in detailed scrutiny of the Bill for the first time.

This group is about sentencing. Notwithstanding everything that I have said so far—and no doubt will say again, and make the Minister’s ears bleed with my position on the Bill as a whole and specific offences—it is also important to engage with the specific issues of appropriate and proportionate sentencing, how the sentencing framework and different offences in that framework fit together, and whether we in this country should be incarcerating more and more people, including for what may well be peaceful dissent. It is very difficult to separate the issue of sentencing from the other formulation of the offence. When I was young, I was a lawyer in the Minister’s department, and one of the things that we were responsible for at that time in the Home Office was looking at the overall sentencing framework. That may now belong in the Ministry of Justice, but none the less the point was that whenever a new offence was proposed by any government department, it needed to pass some gatekeepers in a little unit in the Home Office who wanted to be clear about the formulation of the offence—mens rea, actus reus, et cetera—but also about the sentence, because in government people look for levers for change and everyone has a new big idea about a new offence.

In particular, in this group, with my first and some other amendments, including those of other noble Lords, I am really probing whether the new proposed offence of locking on—the Minister’s colleague, the noble Lord, Lord Sharpe, who is about to arrive in his place, was discussing that earlier—could even include people who, in a disruptive way, link arms. The noble Lord, Lord Sharpe, made the argument that sometimes linking arms in big enough groups would be just as disruptive as gluing your hands to the road. Are we really suggesting incarceration for up to 51 weeks for an offence that could be perpetrated by people singing “Kumbaya” and linking arms? It is a probe, but it is important that there should be some probes about the sentences for these offences, and not just their intention and formulation. I think that it is very important that we consider how many people we are incarcerating in this country, the trajectory that we are on with imprisonment in this country, and whether we have a criminal statute book—including a sentencing statute book—that is proportionate and coherent to meet the needs of a very troubled and polarised society at the moment. With that, I beg to move.

[Lord Paddick (LD)]

I look around in vain for anyone else who wants to speak. I agree with the principles that the noble Baroness, Lady Chakrabarti, has just spoken about. Amendment 13, in my name, is based on a recommendation from the Joint Committee on Human Rights. In its report on the Bill, the committee points out that the offence of locking on under Clause 1 is punishable with—as she just said—

“up to 51 weeks in prison.”

The committee states that:

“This sanction is significantly harsher than the maximum penalties that, until recently, applied to existing ‘protest-related’ non-violent offences such as obstructing the highway (level 3 fine) or aggravated trespass (3 months imprisonment).”


The committee notes that there is likely to be a low hurdle for prosecution—again, as the noble Baroness, Lady Chakrabarti, just said. The amendment therefore questions whether the length of potential imprisonment —51 weeks—is proportionate to the offence that is committed. Amendment 13 suggests that this should be reduced to a three-month maximum sentence.

The remaining amendments in my name in this group relate to the level of fine that can be issued to a person who commits an offence under Clauses 1 to 7. They are similar to amendments that I tabled to the corresponding clauses of the Police, Crime, Sentencing and Courts Bill—now an Act—when it was previously debated in this House. However, given the nature of the debate at that stage—in particular, in Committee, we started discussing those clauses at 11.45 pm—I believe that there is merit in discussing this issue again in this Committee.

Under Clauses 1 to 7, a person convicted of an offence may be liable to “a fine”. However, the Bill does not specify what the maximum level of such a fine should be. For each of these new offences, our amendments ask the simple question: is an unlimited fine proportionate for such an offence? In particular, is it proportionate that a person convicted of the offence of being equipped for locking on, for example, should be subjected to an unlimited fine? The Minister may argue that the level of fine suggested in our amendments is too low. At this point, they are simply probing amendments designed to make the principled point that an unlimited fine may be disproportionate for a number of the offences contained in the Bill. Finally, it would also be of benefit to the Committee if the Minister could set out how they intend fines to be applied consistently for these offences, if there is no upper limit as to the fine that can be imposed.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Paddick

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

In response to that and in support of the broad thrust of my noble friend Lord Coaker’s probing amendment—I think it is fair to call it that—I have long had concerns about public space protection orders in general, and I defer to no one as a civil libertarian, but there is a great tradition in human rights thinking for child protection. So my instinctive response to the noble Baroness is that it is not because the protesters are anti-vaxxers and I disagree with them, it is that it is at school. They are young and potentially vulnerable people, and it does not seem proportionate or fair to me that we as grown-up legislators in this place take greater protection for our immediate vicinity than we give to even primary school children up and down the country, regardless of the nature of the protest.

The point about free speech and freedom to protest being a two-way street is incredibly important, and I suspect that we will return to it in a forthcoming group, but on this issue, for me, at least, the principle is not that I think that this is dangerous speech or disinformation—it is out there anyway online, et cetera—it is that no young person, particularly a very young person, should be subject to an aggressive demonstration, whether or not it is one that I would approve of, on their way to or from school.

Some of us remember the Holy Cross school dispute in Northern Ireland some years ago. The reason why Her Majesty’s Government had to intervene with soldiers, and so on—it was tragic—was not to take sides in the dispute, it was to protect young children, who do not have the same robustness as an older person and should not feel scared on their way to or back from school. I would take that view whether or not the protest by adults from outside the school community was one with which I agreed—about the climate catastrophe or whatever else it happened to be.

It is so important at this stage in the evening, before we get to the next group, to introduce the concept of the two-way street in relation to free speech. So I support my noble friend Lord Coaker in the thrust of his amendment, about schools being special—particularly primary schools, but possibly also secondary schools; that will be up for more detailed discussion—and needing some level of protection from whatever kind of protest by people from outside the school community.

I add that caveat because I think children should be able to protest themselves if they want to. I would not want inadvertently to do anything that caused criminal sanction for children and young people who chose to launch their own protest about whatever it was.

I see this very much as a probing amendment, but the status quo, whereby we have these protections as legislators in the vicinity around the Palace of Westminster —and companies have greater protections from pickets than primary school children have from aggressive demonstrations from whatever quarter—does not seem right. Human rights principles are: always protect children first, and any interference then has to be necessary and proportionate. But equal treatment and the two-way street, particularly in relation to freedom of speech and the right to protest, are crucial.

[Lord Paddick (LD)]

My Lords, I thank the noble Lord, Lord Coaker, who moved the amendment, which is about the need for fast-track exclusion zones around schools to prevent, in particular, anti-vaccination protests in the vicinity of schools.

If she will allow me, I said to the noble Baroness, Lady Fox of Buckley, I think after we finished on Monday night, how important it is to have her voice in the Chamber to test these sorts of issues. All I would say to her on this occasion is that the amendment talks about “activities carried on” that have

“a detrimental effect on the quality of life for pupils and staff”.

So it is not simply a question of banning any demonstration in the vicinity of a school. It would have to have that detrimental effect. I understand that that is a subjective judgment, but at least there is something there, rather than just a blanket ban on anybody protesting about anything at all.

Noble Lords will not need me to tell them that this is not about protecting children, perhaps older school-age children, from not being vaccinated. It is about protecting the whole community because, as we know from previous times in the pandemic, there is a risk of schoolchildren infecting vulnerable parents and grandparents. We also know from the health data that being double-vaccinated does not necessarily protect you completely from the worst effects of Covid, and in particular long Covid, although it gives you much better protection. On the news yesterday, an expert was talking about the fact that, although Covid has mild effects on children, it is not known how much they could be affected by long Covid. So this is not simply about a demonstration outside a school; this is a wider public health issue. However, I understand that, although that is what the noble Lord, Lord Coaker, is aiming at here, the amendment, if passed, would have wider implications than just for anti-vaccination protests.

Amendment 292S, from the noble Lord, Lord Bassam of Brighton, relates to online racism against footballers and enabling football banning orders to be made against those guilty of online racial hatred directed at a member of a football team. He is probably the best-qualified noble Lord to talk on this issue, bearing in mind his experience on the Front Bench in the Home Office under the Labour Government who introduced the banning orders in the first place, and the beneficial effect that they have had in rooting out racism in football. It is a serious problem.

Talking about a hierarchy of diversity is fraught with danger. But, as a gay man, I have always considered racism to be a far more serious issue than, say, homophobia. Some people might argue against this; but I could conceal my sexuality if people from a different planet did not know who I was or what my background was. But you cannot hide your colour; you cannot avoid racism in the way that some gay people, at least, could avoid homophobia; it would not be obvious to people.

I do not know of any professional footballers who have been open about their sexuality, because of their concerns about being open about it. Hopefully, as years go by and social attitudes change, some professional footballers will be open about their sexuality. They should be able to benefit from similar protection, so this legislation should not exclusively provide protection for racism, which is the major issue at the moment, while professional footballers’ sexuality is not. This is a good idea, and hopefully the Government will discuss how this can be taken forward.

This group is diverse—not in the sense of “diversity,” but in terms of the different subjects covered. Amendment 292U, in the name of the noble Lord, Lord Faulkner of Worcester, highlights a loophole in the law. My understanding—although I am not sure as there was no explanatory note—is that it is unlawful for scrap metal dealers to pay cash for scrap metal, but it is not against the law to sell it on for cash. That is the loophole. A scrap metal dealer who surreptitiously acquires stolen metal could sell it on for cash, and the noble Lord’s amendment would disallow that. The payment would have to be made by a traceable means, thus clamping down in the other side of the transaction, which makes sense.

We have debated the issue of scrap metal and the impact on the railway system and churches, for example, and the problem with catalytic converters. As shortages of resources are exacerbated by countries coming out of lockdown and the demand for raw materials grows, scrap metal will become an increasingly important issue. Therefore, closing this loophole regarding the other side of the transaction seems sensible, and we support it.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

The noble and learned Lord is exactly right about this constitutional problem, but there is a further point to be made. In this context, it is not just the usual problem of allegedly unclear legislation that is then going to be sorted out by regulation later, and the relationship between the Executive and the legislature not as it should be. It is also in danger of interfering with police operational independence. To be explicit about this, my fear is that the police will take whatever view they take of what this legislation means in certain circumstances and do their best—and if a Home Secretary of the day, even well into the future, thinks that the police are being too lenient towards protesters, or perhaps there is a commotion in the media, regulations will be used further to define what “serious” and “disruption” mean so as to mandate the police effectively to be more heavy-handed than the natural meaning of the words would suggest.

[Lord Paddick (LD)]

My Lords, I can be relatively brief. Do not worry—it is a temporary blip.

Amendments 298, 308 and 319 question “serious disruption” being decided by the Secretary of State rather than being either defined in the Bill, as my noble friend Lord Beith proposes, or simply left to its natural meaning, as the noble and learned Lord, Lord Judge, suggests in his Amendment 308.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I apologise. I forgot to speak to five more amendments: Amendments 319Q, 319R, 319S, 319T and 319U, which remove the ability for SDPOs to be renewed.

[Baroness Chakrabarti (Lab)]

My Lords, I will be brief and not repeat the valid and chilling points that have already been made. I just say this: for me to even attempt a line-by-line examination of this whole suite of new amendments would result in not just the Leader coming in to censor me again, but me probably being arrested. I am not going to do that, but I will try to say two things that noble Lords have not said yet.

On locking on and in particular going equipped for locking on, and stop and search with or without suspicion of locking on, I am worried not about the glue referred to by the noble Lord, Lord Paddick, but about people with bicycle locks. I am worried about young people going about their business, sometimes riding to a demonstration or being in the vicinity of potential demonstrations, carrying bicycle locks. I cannot see how they are not potentially in jeopardy, en masse, of both the stop and search powers, and going equipped.

Secondly, as a former Home Office lawyer and a director of Liberty, to me, this suite of measures, which could be a Bill in itself, looks, smells and tastes a lot like anti-terror legislation of the kind that I have always opposed as being disproportionate and counterproductive. Whether it is the new orders, the stop and search powers, including suspicion, or offences including thought crimes, this new Bill within a Bill looks like some of the anti-terror powers that, when they were introduced, noble Lords opposite and elsewhere, and I and some of my noble friends—forgive me, I hope—looked the other way. Those powers have inspired what we see here, but this time they are not for terrorists but protesters.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Paddick

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I will speak briefly. I thank all noble Lords who spoke to this. It is a controversial amendment, but I think it has been spoken to quite sensitively, all things considered; maybe it is the lateness of the hour—maybe that was a good move.

I agree with the previous speaker that difficulties in the drafting of an amendment cannot just be dismissed as modalities because when we put forward draft amendments to legislation and say “must” we need to examine what that means. If, as the amendment suggests:

“Police forces in England and Wales must keep a record of the sex registered at birth of each person”,


how is that going to be executed and what will the consequences be? One has to imagine that one is a younger version of the noble Lord, Lord Paddick, in the police station back in the day. People turn up to record whatever it is—a theft, shoplifting, burglary, or a violent offence. How is this recording of the birth sex as well as the subsequently declared gender going to happen and what is the sanction for the “must”? That is not a modality, it is what law requires; there have to be consequences to a “must” being breached. Whatever is really going on, I know there are really sensitive issues in our society at the moment of sex and gender which we will not, I suspect, resolve tonight—we might, but maybe not.

I agreed with my noble friend about the value of data. Whether in the health service or criminal justice system, data is great, but there is another side too, which I think my noble friend acknowledged: that data will put some people off. There are other jurisdictions not far from here where people are really nervous even about declaring their race because of obvious historic reasons for being sensitive about declaring your race at the police station—let alone declaring your birth sex.

We need to see the yin and yang of this particular debate. On the one hand is the brilliant research and analysis of crime we could do if we had more and more data. But on the other hand—and this is not completely different from the previous debate—what we want is victims to come forward and criminal justice to be done. We do not want to do anything that discourages victims from coming forward and reporting crime. That includes people who feel anxious about certain sensitive pieces of information about themselves. We would never want them to put off going to the police station for fear that they say too much. For instance, a person who has been burgled thinking “Was I burgled just because I was burgled, or because I am a trans person? Do I really want to draw more attention to myself because I am an anxious victim of crime?” We need to think about that, let alone the poor old practicalities for a younger version of the very youthful-looking noble Lord, Lord Paddick.

[Lord Paddick (LD)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, for introducing my speech. This amendment is designed to compel police forces to

“keep a record of the sex registered at birth”

of anyone who is a crime victim or who is arrested by the police for a crime. It also forces the police to

“keep a record of the acquired gender of each person with a gender recognition certificate”

who is a crime victim of crime or is arrested for a crime.

It also says that providing this data to the Secretary of State will not be an offence under the Gender Recognition Act. Again, I want to try to focus on the amendment and not get drawn into the wider debate, as far as I can. As the noble Baroness pointed out, I was a police officer for over 30 years, so I want to look at this from the perspective of the police.

How will a police officer know what the sex registered at birth is—thumbscrews, or a chromosome test—even without the consent of the victim? Maybe they could force victims to give their fingerprints, in the hope that they may have had their fingerprints taken before they transitioned and that will prove it—except they may have had them taken after they transitioned, and that will then show their acquired gender, so that will not work. Will victims have to produce their birth certificates before they are even allowed to report a crime? Of course, if someone has acquired a gender recognition certificate and used it to have their birth certificate changed, as they are legally allowed to do, the birth certificate will show their acquired gender, so that will not work either. How exactly will police forces keep a record of something they do not know and have no reasonable way of finding out unless the victim or perpetrator volunteers the information?

If the victim or the perpetrator is a trans person, they are legally protected from having to disclose that information. “Well, it’s obvious,” some people will say, “you can tell, can’t you?” I have met trans men who you would never believe were assigned female sex at birth and trans women who you would never believe were assigned male sex at birth. I have also, embarrassingly, been with a lesbian friend of mine, assigned female sex at birth and who has always identified as a woman, who was stopped going into a women’s toilet in a top London restaurant because they wrongly thought that she was a man.

The supporters of this amendment may say that if they do find out, maybe the police can record it—that maybe the victim is reporting a transphobic hate crime or for some other reason volunteers that information.

The second part of the amendment is totally unnecessary. Section 22(4) of the Gender Recognition Act 2004 already states:

“But it is not an offence under this section to disclose protected information relating to a person if … (b) that person has agreed to the disclosure of the information”—


for example, if they are the victim of a trans hate crime—or, as stated later in the same section, at paragraph (f),

“the disclosure is for the purpose of preventing or investigating crime”.

So the police can use that information already, without fear of being prosecuted. The amendment is not necessary if the victim or perpetrator volunteers the information.

My noble friend Lady Brinton asked if she would have to declare every time she becomes a victim of crime, even if it is a burglary, that she has a disability? What about me? Will the next step be that I have to tell the police that I am gay before I can report that my flat has been broken into? For what purpose should victims have to out themselves? What if I get caught stealing a bottle of Marks & Spencer Prosecco?

[Baroness Chakrabarti (Lab)]

You can do better than that.

[Lord Paddick (LD)]

It is very good, actually; I had some on Saturday. I have not tried to do that but if I did, will I have to admit being gay, as well as being a shoplifter?

In 2018, the Government tentatively estimated that there were between 200,000 and 500,000 trans people in the UK. Noble Lords have said they like data; I am going to give them lots of data. Between the Gender Recognition Act coming into force and 2018, 4,910 trans people have been issued with a gender recognition certificate. If we take the top of the range of the estimate, I make that 0.75% of the population identifying as trans and 0.0076% of the overall population having a gender recognition certificate, or less than one in 10,000 people.

Even if a victim went through the whole criminal justice process without disclosing, and without the police establishing the sex assigned to them at birth, if they were a trans woman, it would increase the number of woman victims, and if they were a trans man, it would diminish the number of woman victims, and taken together, and taking account of the total number of trans people, it would even out. Taking into account that only a fraction of them will become victims of crime who report it to the police, any difference to the crime statistics will be statistically insignificant.

The police arrest, on average, 12 in 1,000 people each year—three in 1,000 women. I do not know how many of the estimated 7.5 in 1,000 trans people are trans women and how many are trans men. Of course, if trans women are counted in the female offender figures, they will also be counted in the female population figures, boosting both the numerator and the denominator. I was never any good at mathematics—I left that to my twin brother—but it is quite clear to me that trans people are not going to make any statistically significant difference to the crime figures unless we assume, and there is no factual or statistical basis to think otherwise, that trans people are more likely to commit crime or to commit particular types of crime.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Paddick

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am sure that the fabulous quintet of noble Lords led by the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson of Astley Abbotts, and so on, will be delighted by that endorsement from the noble Lord, Lord Ramsbotham, as there has never been a clearer or braver voice for penal reform in my adult lifetime.

I briefly add my own three cheers for these two amendments and for everything that goes with them. They have highlighted the piteous state of provision for prisoners from the moment of their release, quite often into destitution, and a total deficit of support. I hope that that will be taken on board, as well as the precise amendment, by the Minister in his reply. Notwithstanding comments made during the last group that law is not everything and practice is important, sometimes law is very important in itself, particularly release dates because they have to be enshrined in law. So, while there is no doubt that other provision, referred to by my noble friend Lady Lister of Burtersett and others, needs to be made, this matter requires urgent legislative attention. I think I agree with the noble Earl that, on reflection, something more like Amendment 211 is probably better.

To deal with the concern of my noble friend Lady Lister about Scotland would not take much, would it? Off the top of my head—forgive me, parliamentary counsel will do better—the “may” in Amendment 211 becomes “must” and the words

“at the discretion of the governor of the prison”

are moved to the gap between “on a day” and

“within the previous five working days”.

In other words, the discretionary part is which day within the previous five days. However, there is no discretion; there is a mandatory requirement that the prisoner must not be discharged on a Friday or a weekend. Something of that kind would be delivered very easily—and it really must be delivered. I hope that there will be none of the antics that we heard described in the other place to justify the totally illogical, impractical and unjustifiable status quo.

[Lord Paddick (LD)]

My Lords, I rise to speak on behalf of my noble friend Lady Bakewell of Hardington Mandeville, who is unfortunately unwell and unable to be in her place. She wanted to speak to Amendment 211 in the name of the noble Lords, Lord Hodgson of Astley Abbotts and Lord Bird, and the noble Baroness, Lady Lister of Burtersett, to which she added her name. She would have spoken about her personal experience, so I shall just read the words that she had hoped to say had she been here.

The routine releasing of prisoners on a Friday, especially before a bank holiday, can cause both services and the prisoners themselves significant problems. Finding accommodation on a Friday afternoon can be extremely difficult. Those who have managed to get clean of substance abuse while in prison find themselves desperate and start using, begin criminal activity again or, in some cases, both. For 10 years, my noble friend was a councillor on South Somerset District Council where there were marvellous officers who worked tirelessly to try to ensure that no one was left with nowhere to stay. The noble Earl, Lord Attlee, made a powerful case for the amendment and the noble Lord, Lord Hodgson of Astley Abbotts, similarly made the case for not releasing prisoners on Fridays or bank holidays. This is a matter that my noble friend feels very strongly about, so I will share two cases sent to her by the officers of South Somerset.

First, prisoner A was released on a Friday from Guys Marsh prison near Shaftesbury. He was given a rail warrant and got on a train to Yeovil. He contacted his family, realised he did not have accommodation to return to and went to see his offender manager at the probation office, who contacted the housing team. By this time, it was 3 pm and they had very little options available for him at that time of day. It was too late for them to find suitable accommodation and although they managed to get him into a hostel in Yeovil, that was not the best place for him, He had left prison clean of drugs and had to stay in a hostel with very easy access to illegal substances. Unfortunately, he used again, the accommodation broke down, he reoffended and was recalled to prison.

Case two was prisoner B, who was released from prison in Bristol on a Friday and got a train back to Yeovil. He then got a bus to Chard, some 17 miles away, to collect his possessions from his old tenancy. He then returned to Yeovil, by which time the offices had closed. He spent the weekend rough sleeping before he could contact the district council again. South Somerset District Council is fortunate to have secured funding to employ a prison release worker who tries to contact prisoners before they are released so they can plan ahead and help them. However, when people are on short sentences, the prisons rarely have time to work with the prisoners, so they get released without the council being informed. My noble friend Lord German has tabled amendments on those serving short sentences.

Other prisoners think they are okay and have homes to return to. These often do not materialise and by the time they realise they are homeless, it is 5 pm on a Friday. Sadly, one of the people in these case studies died over the weekend of 16 and 17 October aged only 45. He was quite a prolific offender and spent a lot of his time in prison. He had been in care from the age of two and did not have the best start in life. The council tried to help him on a number of occasions and sometimes succeeded, but not always. These are just some examples of what happens when prisoners are released on Fridays. This could be avoided by flexibility being used both in the courts and in the prisons. I hope the Minister will agree that this is a very sensible, non-controversial amendment which could prevent reoffending for the want of a roof over the heads of prisoners who have finished their sentences. I fully support Amendment 211 and look forward to the Minister’s response.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Paddick

Lords Hansard - part two & Committee stage
Wednesday 3rd November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

I am grateful to the noble and learned Lord, Lord Garnier, for that. There is ample criminal law and ample tort law for nuisance. There are ample laws to protect people from burglary, nuisance and so on. This measure, however, is targeted. The euphemism is so thin: “without permission, with vehicles”. I wonder who we are talking about there. The euphemism makes this racial discrimination even more obscene.

[Lord Paddick (LD)]

My Lords, we strongly support all these amendments. As the noble Baroness, Lady Whitaker, and my noble friend Lady Bakewell of Hardington Mandeville said, the crucial point here is that if legal sites were provided it is unlikely that these provisions would even be in the Bill. Having adequate sites is likely to be cheaper than the cost of taking legal action against those who have no option other than to trespass. As the right reverend Prelate the Bishop of London and the noble Baroness, Lady Lister of Burtersett, said, the Bill’s provisions, whether by accident or design, will very clearly disproportionately impact an already vulnerable minority: the Roma, Gypsy and Traveller communities. What would happen if the Government and local authorities made it a criminal offence for motorists to park their cars illegally and then did not provide enough spaces for motorists to park legally? There would be uproar.

My noble friends Lady Brinton and Lady Bakewell told the Committee from their extensive experience about hostility towards Gypsy, Roma and Traveller communities. I have to say to the noble Earl, Lord Attlee, that when he reads back what he said in Hansard it will be open to interpretation that, for every crime he described where he could not say who the perpetrator was, he implied that all those crimes were committed by Travellers, without any evidence that they were responsible for those particular crimes. That is why there is so much hostility towards these communities because speeches such as that can be misinterpreted as, “The noble Earl is saying that those communities are responsible for all these crimes, even the ones where we do not know who committed them.”

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Paddick

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

[Baroness Chakrabarti (Lab)]

My Lords, I have to support what I have just heard from the noble Baroness, Lady Meacher, for reasons we began to articulate on Monday evening. Noble Lords will remember we began to have a discussion about what is to be shared and in what circumstances existing duties of confidence and existing professional duties need to be overtaken in the public interest. But who decides? The Minister kindly gave me a very specific answer at one point in our discussion, when she said that it will be decided by the person who holds the data, but, obviously, that can be subject to challenge. That of course is my traditional understanding of professional confidence.

Way before this, and way before the Crime and Disorder Act, that was the traditional position: if the doctor, the teacher or whoever is not minded to hand over to the police the data about a specific person, or more general data, the police will have to go to the courts and try to get a warrant. That is the place for those hopefully rare disputes between professionals and the police, who are coming at this from different positions, to be decided, rather than being decided by direction from the Secretary of State.

Of course, normally, we want the health professionals, the policing professionals and the educational professionals to be working in discussion and collaboration, but, where there is a rare dispute because of their different professional angles and ethics, it really is for a judge to decide and not for the Secretary of State to trump all those existing ethics and duties. I think the noble Baroness, Lady Meacher, is nodding at me. That is the concern I hope the Minister can address in her explanation and defence of Clause 17.

[Lord Paddick (LD)]

My Lords, I rise to support the noble Baroness, Lady Meacher, and I am very grateful to the noble Baroness, Lady Chakrabarti, taking us back to very late on Monday night, if the Minister remembers, when we were discussing Clause 15, on the disclosure of information. The Minister—I think, from memory, although it was late—implied that the disclosure of information was voluntary and that the clause was there simply to facilitate the disclosure of information. In challenging the Minister in that, I quoted from Clause 17.

I can be brief. Clause 17 enables the Secretary of State, if satisfied that a specified authority, educational authority or youth custody authority has failed to comply with the duties to collaborate or disclose information—including, presumably, sensitive personal information and information covered by a duty of confidentiality—to direct the authority to comply and enforce her direction through a mandatory order. That is what Clause 17 says.

I have already explained at length why professionals should use their professional judgment—as the noble Baroness, Lady Chakrabarti, just said—within existing policies, procedures, practices and protocols, rather than being forced to divulge sensitive personal information when it is not, on balance, in the public interest to do so. For example, there will often be a greater good to be derived from maintaining a relationship between, say, a youth worker and a young person at risk of becoming involved in serious violence than from divulging sensitive information to the police. All authorities dealing with these issues are committed to preventing and tackling serious violence. They may, from time to time, have a different perspective on the problem, or a different view on the best way to achieve what we all are desperately seeking to do.

This clause is one of the reasons why so many organisations believe that the Bill is really about a police-led enforcement approach, because it is the Home Secretary who can force them to comply, rather than the public health, multiagency, multifaceted approach that has been so successful in preventing and tackling knife crime in Scotland. Can the Minister give examples of where public authorities involved in preventing and tackling serious violence have obstructed efforts to achieve those objectives? If not, why is this clause necessary? We believe that Clause 17 should not stand part of the Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Chakrabarti and Lord Paddick

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Lord Paddick (LD) [V]]

My Lords, in moving Amendment 7, I will speak also to Amendments 8, 9 and 10 in my name and that of my noble friend Lady Hamwee, and Amendment 11 in the name of the noble Baroness, Lady Chakrabarti.

The primary force of this Bill comes from inserting a new clause into the Regulation of Investigatory Powers Act 2000. Section 5 of the Regulation of Investigatory Powers Act 2000 deals with the interception of communication warrants that have to be issued by a Secretary of State. It states that the Secretary of State shall not issue an interception warrant unless she believes it is necessary, and it goes on to define “necessary” in subsection (3):

“Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—(a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; (c) for the purpose of safeguarding the economic well-being of the United Kingdom”.


There is a paragraph (d), but it is not relevant today. This definition of “necessary” appears at other places in the 2000 Act, including Section 32, on the “Authorisation of intrusive surveillance”.

Section 81 deals with general interpretations and subsection (3) sets out the tests, either of which need to be satisfied if a crime is to be considered a “serious” crime, and they are:

“(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more; (b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.”


In previous groups, we have set out why we believe covert human intelligence sources committing crimes is more serious than other forms of intrusive surveillance. Agents or informants are difficult to pull out of a situation if it suddenly changes, whereas listening devices can be switched off. Agents or informants are often placed at continuing personal risk in a way that technicians deploying listening devices are not. Listening devices are deployed against serious criminals, but innocent bystanders are more likely to be caught up in the criminal activity of agents or informants.

The list goes on, and yet this Bill allows criminal conduct authorisations to be granted in order to tackle any sort of crime and any level of disorder. Of course, CCAs have to be necessary and proportionate, but so does the deployment of listening devices, the interception of communication and the interference of equipment as set out in the other parts of the Regulation of Investigatory Powers Act 2000. But in those cases, in addition to being necessary and proportionate, they also have to target “serious” crime.

The Government make great play of the fact that these new provisions should be consistent with existing provisions in this area. In that case, they should agree to our Amendments 7 and 10, which limit the granting of criminal conduct authorisations to serious crime as defined by the 2000 Act. Preventing disorder is not mentioned in any of the existing provisions of the 2000 Act. We believe that a clear distinction needs to be made between, say, lawful protests, marches and demonstrations, and serious disorder. Our Amendment 8 seeks to achieve this.

Amendment 9 takes a slightly different approach, as things have moved on from when the 2000 Act was drafted. The issue of the interests of the economic well-being of the United Kingdom has been considered by this House more recently. In the Investigatory Powers Act 2016, in various places—including subsection (2)(c) of Section 20, which deals with the grounds on which targeted interception warrants are granted—the necessary grounds include it being

“in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

The same definition applies to obtaining communications data, bulk interception warrants, bulk equipment interference warrants and, in fact, every provision for the granting of authorisations in the 2016 Act.

This House considered the same issue in relation to the powers granted to border security officers to stop, question and detain under the Counter-Terrorism and Border Security Act 2019. Under part 1 of Schedule 3, an “act” is defined in paragraph 1(6) as hostile if, among other things, it

“threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security”.

The same definition, including the additional phrase

“in a way relevant to the interests of national security”,

appears in relation to the power to make and retain copies of articles.

We had exactly the same discussions when it came to those Bills, which post-date the 2000 Act, as we are having now: that the economic well-being of the United Kingdom needs to be qualified to include where that is relevant to the interests of national security. In relation to the 2016 and 2019 Acts, the Government accepted those arguments and changed the legislation. In case the Minister raises it, the definition of “serious” crime in the 2016 and 2019 Acts is almost identical to that in the 2000 Act.

The Minister will have to come up with a convincing argument as to why this Bill is different from both the Investigatory Powers Act 2016 and the Counter-Terrorism and Border Security Act 2019. Quite clearly, consistency with the 2000 Act was not accepted as a good enough reason when it came to the 2016 and 2019 Acts. If the Minister fails to produce a compelling reason not to accept our Amendment 9, I intend to test the opinion of the House.

On Amendment 11 in the name of the noble Baroness, Lady Chakrabarti, I simply repeat what I said in Committee. For as long as I can remember, the use of an agent provocateur was explicitly prohibited in police guidance on participating informants, and yet it appears nowhere in this Bill, nor in the draft statutory codes of practice.

The only argument that the Minister came up with against this amendment in Committee was that Article 6 of the European Convention on Human Rights protects the right to a fair trial, an existing principle of English and Scottish law, and that the use of agents provocateurs could affect a fair trial. He also pointed out that Section 78 of the Police and Criminal Evidence Act 1984 allows a court to consider and exclude such evidence. However, as the noble Baroness, Lady Chakrabarti, convincingly responded to the Minister in Committee, agents provocateurs may be used in circumstances where there is no trial. For example, agents provocateurs may provoke a legitimate organisation to do or say something that undermines its credibility in the eyes of the public, short of a criminal offence, or they may provoke criminal offences that would otherwise not have been committed where no one is arrested or charged. The Government’s argument appears to be that agents provocateurs are acceptable provided that no one faces trial.

Amendment 11 is necessary, and we will support it if the noble Baroness divides the House. I beg to move Amendment 7.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to the noble Lord, Lord Paddick, for putting the argument for my Amendment 11, which is supported by him and the noble Baronesses, Lady Ritchie of Downpatrick and Lady Jones of Moulsecoomb. I intend to press that amendment.

Forgive me, but I am not being rhetorical here: I do not think this amendment should be controversial in substance. I think the only difference between the Minister and me on this issue will be on whether the amendment is necessary to deliver my intention or whether the protection already exists in the legislation.

I shall briefly make the argument to the Minister. One of the grounds for authorising criminal conduct in what will become Section 29B is

“in the interests of the economic well-being of the United Kingdom”.

We have just said that that belief must now be reasonable. Let us say that I work for one of the security agencies or indeed a police force, and I take the view that a particular environmental movement proposes the most extreme measures in the fight against climate change and that the agenda promoted by this organisation—perhaps not today but in five years’ time—is so extreme a green position that it will severely damage the economic interests of the United Kingdom. I also perhaps believe that, while that movement is yet to become extreme in its direct action, that may well happen in future, and I believe that it is in the economic and possibly even the national security interests of the United Kingdom to head this movement off at the pass and discredit it in the public eye before the damage is done.

Therefore I authorise an agent—a CHIS—to commit crime, not because it is necessary to keep their cover but to discredit the organisation, which to date has not been involved in violence or anything that is actually criminal. As the noble Lord, Lord Paddick, put it, I then authorise a crime. The agent commits a crime, and the undercover agent is the only person in that group who has committed a crime, but the crime has such consequences that it discredits that peaceful protest movement in the eyes of the media, the public and the Government. It possibly justifies if not a criminal prosecution then perhaps the banning of that organisation. Article 6, and criminal court rules against entrapment and so on, will not help because there is no trial.

It seems to me that currently in the Bill there is nothing to prevent an agent provocateur who is used to incriminate peaceful protest. This is not an academic issue; it is an issue of grave concern to trade unions, the environmental movement, the Black Lives Matter movement and others involved in peaceful dissent. This has been a problem in our country and elsewhere in the world throughout the history of peaceful protest, so I urge the Minister to consider accepting the amendment. It would do no violence to the stated intentions of her policy or the legislative scheme that she is intending to pass.

Finally, I echo the kind words of my noble friend Lord Rosser towards James Brokenshire, who may be in the other House but whom I have experience of being in very heated debates with for the media. He is a kind and gentle man worthy of this House who could teach a lot of us a few things about tone and civility. I am sure that I join the whole House, remote and present, in sending thoughts and prayers and every possible good wish for his speedy and complete recovery.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Chakrabarti and Lord Paddick

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Lord Paddick (Lab)]

My Lords, this amendment is in my name and that of my noble friend Lady Hamwee. As we have debated at length, authorising a CHIS to commit crime and granting immunity to that CHIS and maybe others involved is a far more serious thing to do than simply deploying a CHIS. We felt that to expect such an authorisation to last for 12 months—and, in the code of practice, with no mandatory review within that 12-month period but purely at the discretion of the authorising officer—was too much; it is far too long for a criminal conduct authorisation to be in place and not be reviewed.

We cast around for what a reasonable period might be and went back to what I referred to before: the Regulation of Investigatory Powers (Juveniles) Order 2000, amended by the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018. The initial order changed the period for authorising a juvenile CHIS from one year to one month. The 2018 order amended that to four months with a monthly review, recognising how much more serious it is to deploy a juvenile CHIS than an adult CHIS. Therefore, bearing in mind how serious a CCA is compared with the deployment of a CHIS in other circumstances, we felt that a four-month cut-off for a CCA with monthly reviews was the appropriate limitation to be placed on a CCA in line with the authorisation for juvenile CHISs. I beg to move.

[Baroness Chakrabarti (Lab) [V]]

I will speak briefly in full-blooded support of the noble Lord, Lord Paddick, and an amendment that seems to me like a no-brainer. The worst abuses of undercover policing, as are emerging in the inquiry, have related to people who have been embedded for a long time without adequate review, and obviously the risk of abuse is greater the longer a person builds their legend and is embedded without proper review.

Given that all time limits are arbitrary, it is right that we look for something relatively short, given the gravity of the line that is being crossed with this legislation for criminal conduct. The noble Lord has come to a very decent compromise with the monthly review and the four-month maximum on licensing people to commit crime.