Nationality and Borders Bill

Baroness D'Souza Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, powers to deprive British citizens of their citizenship have historically been very tightly drawn under UK immigration law for obvious reasons. However, I reminded the Committee that in 2003, 2006, 2014 and 2018, these powers were very considerably expanded, so that now they are exercisable against any British citizen who has dual nationality, where the Secretary of State is satisfied that deprivation is conducive to the public good. The breadth of this power is perhaps best understood by the Supreme Court’s conclusion in the Begum case, that this includes situations where the individual is unaware that they hold dual nationality and even where that individual has little or no connection with their country of second nationality.

I reminded the Committee of the words of the leading immigration law silk, Raza Husain QC, who said:

“This progressive extension over the last two decades has meant that it is no longer necessary to demonstrate that someone is a terrorist or a traitor before stripping them of British citizenship. Individuals may be deprived of citizenship on general public interest grounds of the sort usually invoked to justify deportation, rather than on the basis of their severing the bonds of allegiance that are the hallmark of nationality.”


The drastic nature of this power was well described by the United States chief justice Earl Warren, a Republican, put on the court by President Eisenhower, who said that the loss of nationality amounts to

“the total destruction of the individual’s status in organised society… the expatriate has lost the right to have rights.”

He was channelling Hannah Arendt there.

Deprivation of citizenship is such a drastic and far-reaching power that it must be accompanied by proper procedural safeguards. That much is obvious. This is a power that has been beloved of some of the worst regimes in history. If we are to permit this power to a Secretary of State, it must be accompanied by procedural safeguards. In its original form, Clause 9 went in precisely the opposite direction, removing the most basic safeguard of all—the safeguard of notification —really at the Secretary of State’s whim. That was not good enough and, like my noble friend Lord Anderson, I am grateful to the Government for having listened to the debate in Committee and for having changed course. Again, like him, I am satisfied that serious movement has been made and that some of our most serious concerns about the clause as originally drafted have been responded to appropriately. For that reason, I will be supporting this amendment and am extremely grateful to the noble Lord, Lord Anderson, for moving it.

[Baroness D'Souza (CB)]

My Lords, the amendments tabled by the noble Lord, Lord Anderson, add hugely important safeguards to Clause 9, but subsections (5) to (7), which are set out on page 12 at lines 13 to 19, would remain in place and appear to make lawful what is clearly unlawful. The secret power to deprive citizenship without notice and/or appeal threatens our cherished British values of fair play and the rule of law. It would also risk unduly affecting ethnic minority communities. Subsections (5) to (7) seek to instruct the courts to treat past unlawful deprivations as if they were lawful, even where the courts have found that these actions failed to comply with statute at the time when they were made.

Parliament, it seems to me, is being asked to condone a disregard for the law by those Ministers who took away British national citizenship when it was illegal to do so. If these provisions remain in the Bill, a series of unlawful deprivation orders made against young women from minority ethnic communities will not be subject to any scrutiny whatever. This cannot be right.

It seems clear from what has been said so far on this clause that the most profound concerns still relate to Clause 9 as a whole and—although the amendment tabled by the noble Lord, Lord Anderson, alters the whole tenor of the Bill and grateful thanks are due to the Minister for enabling this—the concerns remain. These clauses would create a secret power. Clause 9 goes well beyond cases where the Government cannot provide notice. According to the Policy Exchange think tank, at no point in the last century has it been thought that national security called for depriving British citizens of their citizenship without notice. We cannot see the case for this now, at a time when our closest allies, such as the US, are warning that depriving individuals of citizenship is not an effective way to fight terrorism.

The main issue in this group of amendments is whether Clause 9 should remain part of the Bill. My suggestion is that it should be removed to create certainty and clarity. It seems to me that the optimal solution would be to remove this clause altogether, not only because, as it stands, it is contrary to British law and indeed to parts of the UN refugee convention, but because this clause—as well as new subsections (5) to (7) proposed by the amendment in the name of the noble Lord, Lord Anderson—seem to enable further restrictive orders, something that we as a scrutinising Chamber should avoid at all costs. Therefore, while I will of course support the noble Lord’s amendment, I will also seek to move my amendment, which would leave Clause 9 out.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady D’Souza, and I agree with what she said and that, although the amendments moved by the noble Lord, Lord Anderson, have made Clause 9 less bad, it is still a bad clause that should disappear from the Bill. When introducing this group, the noble Lord, Lord Anderson, said that these amendments were all about Clause 9. I would rather say that my Amendment 22, to which I will speak, was provoked by Clause 9. One thing revealed in public debate—and there has been an enormous amount of public debate around Clause 9—is the fact that so many people had not realised that what the Minister described earlier as the “warm embrace of citizenship” can be taken away, and that there is profound discrimination in the way that this can happen.

The noble Baroness, Lady Chakrabarti, talked in Committee talked about two-tier citizenship; I talk about it as two classes of citizenship. I regret that I was not able to take part in Committee; I thank my noble friend Lady Jones of Moulsecoomb for very ably speaking for me. However, there are about 6 million Britons—I declare an interest as I am among them—who, because of another citizenship or their descent from people who came to Britain and chose to be Britons, have second-class citizenship. It can be taken away by the Government and, as the noble Lord, Lord Macdonald of River Glaven, just outlined very clearly, we have seen a very rapid and considerable escalation of the ways in which that power can be, and has been, applied.

My Amendment 22 makes one exception. If someone attains citizenship by means of fraud or misrepresentation, obviously, the power should remain for that citizenship to be taken away, but if that citizenship has been acquired honestly, my amendment says that it cannot be taken away. I suggest to your Lordships’ House that this is the only way that we can ensure that every British citizen is the same class of citizen and treated in the same way. Given that people who have, or have access to, alternative citizenships come from migrant backgrounds, the discrimination in how this is applied is very obvious. I note from having read the Hansard report of Committee very carefully that the noble Baroness, Lady Mobarik, expressed support for this. I thank the noble Lord, Lord Paddick, for also expressing support in principle for the idea that there should be only one class of citizenship and the Government should not be able to take it away.

I can imagine the response I might hear from the Minister: what about someone who is a security threat? If we have given millions of people British citizenship, we have benefited from the contributions, of all kinds, that they have made to the UK. Should we be able to say, “This person’s a problem so we’re going to get rid of them”, and make them someone else’s problem? If a person is a security threat to the UK, they might well be a security threat to the country that they hold citizenship for and that we send them to. Why should we be able to dump our problems on someone else?

I find myself torn. I aware of the desire in your Lordships’ House to take away some of the worst elements of the Bill, but I also find myself supported by many people in civil society who say that they want to ensure that there is one class of citizenship. I have said to all the relevant authorities that I will reserve the right to call a vote on this, because I find it a matter of principle on which it is very difficult simply to withdraw the amendment. I would really like to hear everyone’s position on this, particularly the Front-Bench speakers—I hope one of the Lords spiritual might contribute—and everyone’s explanation of whether they believe there should be two classes of British citizenship. Having heard that debate, I will make a decision about whether to push Amendment 22 to a vote.

--- Later in debate ---

Moved by

[Baroness D’Souza]

20: Clause 9, leave out Clause 9

[Baroness D’Souza (CB)]

My Lords, having listened with great care to a number of Lords speak about Clause 9, I think it is accepted that citizenship of the UK is an enormous privilege, but it is also a right. It seems that, despite the wonderful amendments tabled by the noble Lord, Lord Anderson, there remain sufficient loopholes in Clause 9 for it to become, once on the statute book, a hostage to fortune. In view of that, I would like to test the opinion of the House.

Operation Warm Welcome

Baroness D'Souza Excerpts

Thursday 25th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

Yesterday’s tragedy brought into sharp focus the human cost of criminals, caring nothing for human life, recklessly bringing people across the channel—and in what did not even look like boats yesterday. I totally agree with my noble friend.

[Baroness D’Souza (CB)]

My Lords, the refugee burden on counties in the south-east of the UK is unfair. What incentives are being offered to families in other counties to open their doors to some of the persecuted Afghans? Are the UK Government considering schemes to place some of the hundreds of those waiting in hotels into settled communities, as is being attempted in Canada, for long-term social, economic and cultural benefits?

[Baroness Williams of Trafford (Con)]

The noble Baroness gets to the heart of what an ideal system looks like, which is integration into communities. There is of course a community sponsorship scheme; I pay tribute to the Church of England, and the Catholic Church in my own area, for the work they have done on that. On what we are doing to incentivise, we are giving £20,500 to local authorities over three years to support each person’s integration. As I say, we are most grateful to those 323 local authorities which have pledged their support.

Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021

Baroness D'Souza Excerpts

Tuesday 12th October 2021 Lords Chamber

Moved by

[Baroness D’Souza]

That this House regrets that the Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 (SI 2021/601) does not provide adequate safeguards on the actions of covert agents, as the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 failed to include express limits on the crimes covert agents can commit; and calls on Her Majesty’s Government to amend the Act to provide proper limits on, and oversight of, crimes committed by covert agents.

Relevant document: 4th Report from the Secondary Legislation Scrutiny Committee

[Baroness D’Souza (CB)]

My Lords, I am very grateful that some noble Lords are still here. That is very nice. I make no apologies for returning to the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which was so thoroughly debated and amended in this House earlier this year. As I said while the Bill was passing through this House, I am truly happy that a previously secret process has been put on a statutory footing. That said, I also wish to have it on record that there remain serious gaps which would allow authorised agents to commit serious crimes with impunity. These gaps have not been adequately addressed in this regulation of investigatory powers statutory instrument and for this reason I have tabled this Motion.

The statutory instrument concerns requirements on the level of seniority for MI5 officers and those of other bodies who are authorised to sanction CHIS participation in crime and to record the criminal conduct authorised. The SI includes the crucial phrase

“including any parameters of the conduct authorised.”

I understand that these parameters will reflect only the conduct being authorised and will not include substantive limits on the crimes which may be committed. This, theoretically at least, enables involvement in serious abuses such as murder and/or torture.

The Government claim that, by introducing the requirement of recording any criminal authorisations, limits are effectively set on the crimes in which the CHIS Act may be involved. However, without hard limits there is nothing to ensure that the criminal conduct authorised does not itself involve abuses. As such, the SI is to my mind incomplete.

The point was argued at several stages during the passage of the CHIS Bill. Despite earnest pleas to tighten up the named crimes, as happens in countries such as Canada and the USA, the Government declined to do so. The argument put forward by the Government that defining more closely forbidden criminal actions, including murder and torture, would represent a risk of exposure to those working under deep cover is one that many other countries have rejected.

The Government are therefore asked once again to reconsider this SI and to include within it express statutory limits on the kind of criminal action that can be authorised. It is of course accepted that the mandatory application of finer points of the law in the potential context of immediate and present danger is a step too far. However, murder and torture are extremely serious crimes and as such need to be expressly forbidden. Furthermore, the fact that the phrase in question in this statutory instrument is left open, without express limits in the main Act, surely conveys the message that both murder and torture are, under certain circumstances, acceptable.

I welcomed the CHIS Act in so far as it placed the process of authorising criminal conduct on a statutory footing, as I said. However, a clearly stated prohibition under any circumstances of murder and/or torture would further assist in clarifying the operational environment and ensure that the UK upholds human rights laws. I beg to move.

[Lord Paddick (LD)]

My Lords, we support the Motion to Regret moved by the noble Baroness, Lady D’Souza, to the extent that we too believe that this statutory instrument does not provide adequate safeguards on the actions of covert agents. However, we believe that the reason given by the noble Baroness in her Motion is not within the scope of the order. However, we feel that this House should regret the order because the authority level for authorising criminal conduct by covert human intelligence sources is not sufficiently high. Indeed, as was made clear in the Explanatory Memorandum, it is only at the same level as it would be if the CHIS were not participating in crime.

As we made clear during the passage of the Bill—now the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which made the main part of this order necessary—we agree completely that there should be stronger safeguards surrounding the deployment of agents or informants in circumstances where they are permitted to commit crime. Agreeing with the noble Baroness, Lady D’Souza, we argued that there should be limitations on the crimes that covert agents can commit beyond the implicit Human Rights Act limitations. However, that issue was debated and decided on when this House considered the primary legislation. We did not win the argument. This statutory instrument does not impact on the types of criminal activity that an agent or informant can commit. We therefore consider that the noble Baroness’s justified concerns are not within the scope of the instrument.

We also maintain that there needs to be clear judicial oversight of such deployments to the extent that judicial commissioners should have the authority to prevent the deployment of—or, in urgent cases, to withdraw safely from deployment—agents or informants authorised by the police, the security services and other authorities to commit crime. Currently, there is a duty only to inform judicial commissioners within seven days of deployment, with no statutory mechanism for judicial commissioners to revoke the authority. Again, we debated this at length during the passage of the then Bill. We did not prevail in our insistence on these safeguards and the issue is not within the scope of this statutory instrument, but we feel that it is important to restate our position in this regard.

What is within the scope of this order, and what we do regret, is the authority level of the officer—particularly in the police—who can authorise an agent or informant to commit crime. In urgent cases this can be a police inspector. I was a police inspector at the age of 24. The Government may say that only specially trained inspectors can authorise the deployment of CHISs and that this will be written into the CHIS code of practice, but my understanding is that that is not contained in either primary or secondary legislation. Can the Minister confirm that it would not be unlawful for any police inspector to grant such an authority, even if it were against the code of practice? On that, the Explanatory Memorandum says that

“the formal process to update the Code is under way.”

Can the Minister confirm that, as this statutory instrument is already in force, these changes have already come into effect but the code of practice that underpins it is not yet in place?

The Explanatory Memorandum goes on to say:

“The updated Code will be subject to Parliamentary scrutiny upon the laying of an additional SI in due course”.


Can the Minister confirm whether this has happened, or when it is likely to take place? Will it be subject to the negative or affirmative procedure?

There is a world of difference between deploying an agent or informant benignly into a scenario and authorising that agent or informant to commit a crime; it is a degree of magnitude more serious, no matter what the crime is, yet the authority levels set out in this statutory instrument are the same as for a simple deployment with no authority to commit crime.

I refer back to the debates that we had during the passage of the original Bill. The noble Baroness, Lady Manningham-Buller, referred to the impeccable and courageous agents deployed by the security services, perhaps conjuring up the image of James Bond in the public imagination. I contrasted this characterisation with the fact that most informants employed by the police are criminals. I would go further, and refer to the activities of undercover police officers that have recently been the subject of both a public inquiry and successful action in the courts.

The Government will say—indeed, the Minister said during debates on the Bill—that undercover officers would never be authorised to have sexual relations with activists. In an action brought against the Metropolitan Police Service and the National Police Chiefs’ Council, where the claimant successfully argued that her human rights—her right to freedom from inhuman and degrading treatment, her right to privacy and her right to freedom of expression—had been infringed, the Investigatory Powers Tribunal at the Royal Courts of Justice found:

“We are driven to the conclusion that either senior officers were quite extraordinarily naive, totally unquestioning or chose to turn a blind eye to conduct”—


sexual relationships—

“which was ... useful to the operation”.

According to the BBC report of the case dated 30 September, the tribunal also found that the failure of the Met and the NPCC to guard against the risk of undercover officers entering into sexual relationships with women amounted to unlawful discrimination against women. The tribunal concluded:

“Our findings that the authorisations”—


under the Regulation of Investigatory Powers Act 2000—

“were fatally flawed and the undercover operation could not be justified as ‘necessary in a democratic society’ revealed disturbing and lamentable failings at the most fundamental levels.”

This was not in the era of “Life on Mars”, when I joined the Metropolitan Police in the mid-1970s; this was this century. The officer concerned was not deployed undercover in connection with this case until 2003. This is not ancient history but at a time when the current commissioner and I were both senior Metropolitan Police officers, although neither of us had anything whatever to do with the case that I am describing. I am simply making the point that the senior officer in charge of the Metropolitan Police today was a senior officer in the Metropolitan Police when this happened, in terms of temporal proximity. The Government cannot say with confidence that that was a long time ago and the officers around at that time, who oversaw undercover officers and allowed that sort of thing to happen, are no longer serving.

Trust and confidence in the police have been severely undermined by recent events, as the Government have themselves admitted, yet here we are, allowing relatively junior police officers to authorise criminals and undercover police officers to commit crime with ineffective judicial oversight. The authority levels, as set out in this statutory instrument, are too low, the range of offences that agents and informants can commit is too wide, and the judicial oversight is not stringent enough. The Government are asking us to trust the police to authorise criminals to commit crime by passing this statutory instrument into law, while at the same time telling the public not to trust police officers, particularly lone male officers in plain clothes. We regret this statutory instrument for the reasons that I have set out.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

As I said during my response to the debate, the officers who authorise are trained but the noble Lord is now getting into the area of rank and asking whether the authorising officer would have to be an inspector or above as well as trained. Rather than guess what the right answer might be, I shall write to him on that point of clarification.

[Baroness D’Souza (CB)]

My Lords, I thank the Minister and all those who have contributed to this debate warmly for their response.

I had not expected there to be a Damascene conversion in the past 30 minutes or so. However, I maintain that the SI as it stands is incomplete and find it difficult to understand why it is possible, for example, to talk about sexual abuse but not mention murder or torture. It rather looks as though the Act and the SI exclusively allow murder or torture as crimes that can be committed by covert agents.

The noble Lord, Lord Paddick, talked about the transgressions of policemen and questioned the rank of those who could authorise people to commit crime. That underlines the issue that I have mentioned, which is that sexual transgressions take place in the mood of the moment and are extremely serious. But so are murder and torture. It seems odd that it was difficult to mention that in the Act or the SI. The noble and learned Lord, Lord Mackay, reminds us, rightly, that any authorising agent must abide by the Human Rights Act. But there again, if it is a question of abiding by that Act, what is the difficulty in mentioning serious crimes such as torture and murder? It therefore seems that there is reluctance on the Government’s part to circumscribe the kind of crimes that can be committed within the CHIS Act. I wanted to put that on the record because I fear that the matter is unclear and the lack of clarity will have adverse consequences in the long run.

I nevertheless thank the Minister for patiently going over ground that we have covered at length previously, but it is worth taking a stand on this SI. We so rarely get an opportunity to really discuss SIs on the Floor of this House and it is important to do so. Meanwhile, I beg leave to withdraw the Motion.

Motion withdrawn.

Afghan Relocations and Assistance Policy

Baroness D'Souza Excerpts

Wednesday 15th September 2021 Lords Chamber

Asked by

[Baroness D’Souza]

To ask Her Majesty’s Government what steps they are taking through the Afghan Relocations and Assistance Policy to support (1) individuals, and (2) groups, working on Official Development Assistance funded projects on gender and women’s rights in Afghanistan.

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

My Lords, the Afghan relocations and assistance policy was set up to facilitate the resettlement of Afghan nationals who worked with the UK Government in Afghanistan. A number of gender and women’s rights activists were evacuated as special cases under Operation Pitting, and those still in Afghanistan may be eligible for resettlement under the Afghan citizens’ resettlement scheme.

[Baroness D'Souza (CB)]

I thank the Minister. What precise assessment has the FCDO made of the number of affiliated academics and/or researchers currently in hiding? What on-the-ground assistance can be relied on to ensure their safe evacuation within the next few days?

[Baroness Williams of Trafford (Con)]

As the noble Baroness will know, safe evacuation within the next few days is incredibly challenging, first, because of the lack of consular assistance and, secondly, because of the dangers in getting people out. But the schemes that we are running will enable people like those the noble Baroness talks about to ultimately find safety in this country.

Police, Crime, Sentencing and Courts Bill

Baroness D'Souza Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Baroness D’Souza (CB)]

My Lords, this is a big and important Bill with much to commend it but, regrettably, also some ambiguous provisions that will undoubtedly infringe civil liberties. While there are welcome clauses on, for example, increased penalties for assaults on emergency workers, Part 3 of the Bill, which deals with police powers to prevent, limit and/or curtail public protest, gives cause for concern. I am aware that many Lords in this debate so far have addressed this, and I have to forewarn noble Lords that I will be doing so as well.

Freedom of expression and assembly is a crucial democratic right, and some might say the cornerstone of the democratic process. It enables citizens to express views, call decision-makers to account, participate in decisions affecting their lives and livelihoods and alerts the wider public to the potential dangers of statutory limitations. Public demonstrations are an expression of civic concerns and are addressed at legislators who not only represent the people but have the power to change legislation. The cessation of fracking is a much-cited recent example of demo power. Clearly, such freedom is not an unfettered right, public order being an equally important civil liberty but, as again Members of the other place and Peers today have argued, a balance must be sought. In the Bill before us, the balance has inexorably tipped towards the Government and their agents being the arbiters of what constitutes allowable demonstrations based on criteria which are themselves vague and subjective.

Experience tells us that, once on the statute book, a law such as this is likely to be enforced more strictly than is necessary, if only to justify the play-safe concerns that the police might have about public order and safety. It could well become the thin edge of the censorship wedge, infringing both the ICCPR and the European Convention on Human Rights. Included among the consequences of this legislation is the real possibility that an individual or individuals could be sentenced to new custodial terms for inadvertently infringing the new noise-trigger conditions. Which organiser of a procession or demonstration is able to precisely predict the level of noise a crowd will reach? However, the senior police officer in charge is free to stop a demonstration on the basis of a reasonable expectation that noise may reach a social disruption level. Who determines acceptable or unacceptable noise levels? What constitutes a “significant” impact on bystanders? Clause 56 adds to the existing police limitations on the duration, location and size of public assemblies, by allowing more general powers to impose

“such conditions as appear to the officer necessary to prevent the disorder, damage, disruption, impact or intimidation mentioned in subsection (1).”

These are very wide powers.

Clause 61 criminalises children for taking part in non-violent protest and creates harsh sentencing for children who “ought to know” that restrictions were in place. This is especially confusing since the restrictions are themselves uncertain and arbitrary, depending on the judgment of the existing officer in charge. Former senior policeman have themselves seriously questioned these clauses as pitting the police against the communities that they serve.

The vague conditions of many clauses will have a chilling effect on legitimate protest because severe restrictions can be imposed in anticipation of undue noise having an impact on those in the vicinity. Furthermore, the organisers could face an 11-month sentence for any breaches of police conditions, conditions which henceforth can be provoked by a one-person protest. By way of mollification, the Bill offers a fatuous sentence which states that the police will need to consider the human rights of protesters before using these powers. I wonder how this will be achieved.

These are disproportionate measures to deal with an issue that is not, as yet, a major public order problem. The longer-term result is that Governments and other decision-makers will be more able to avoid scrutiny or being held to account, and ordinary citizens will be silenced for expressing opposition to policies that affect them adversely. What I think this Bill will do, if enacted in its present form, is force protest of whatever kind into a far more dangerous underground channel.

I will be supporting amendments that either remove Part 3 of the Bill entirely or alter these clauses radically, by upholding the fundamental right to assemble and protest publicly.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness D'Souza Excerpts

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

The Committee so far has explored CCAs working within the geographical confines of the United Kingdom. Once one moves to different countries, with different time zones and different patterns of law and custom, the potential problems and challenges to their proper supervision becomes greater, and that is why I have tabled Amendment 45.

[Baroness D'Souza (CB)]

My Lords, Amendment 55 in my name is in this group. The amendment seeks to place on the face of the Bill a clear prohibition on three grave criminal acts, namely murder, torture and sexual violations. It is narrower in its application than other amendments in this group, to avoid any confusion about the scope of these prohibitions. Therefore, references to “too broad” and “too open to interpretation”, such as threats to economic well-being and damage to property, are omitted. An added clause, referring to the discretion of the state not to prosecute the commission of even these major crimes, provides a further lack of restriction in exceptional cases.

Of course, there is no doubt of the need for the Bill to protect informants in their often dangerous but vital work. But the Bill as it stands puts the executive authorities and their agents above the law, a concern widely expressed at Second Reading. No state should authorise serious crime without limits. The Government’s justifications for allowing these grave crimes have still not been fully dealt with—for example, why the Human Rights Act, according to previous statements on the part of the Government, would not apply to informants’ criminal actions, or why listing prohibitions would somehow expose informants to additional danger. These are among the remaining ambiguities in the Bill.

We might learn from the original RIPA legislation, which necessitated later additional amendments to prevent its scope inexorably increasing over the years. The law must be accessible and clear. There is an opportunity here and now to make this Bill fit for purpose by incorporating the three main prohibitions limiting the sanctioning of grave crimes which are themselves contrary to the terms of the ECHR, to which the UK is party. To omit these limits, the Bill damages the integrity of criminal law and suggests that the state may tolerate, or even encourage, the most serious offences in the UK law.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, these amendments have at their heart the question of whether there should be a list of offences which can never be authorised. The Government say not, claiming that countries which have such lists do not experience the same type of criminality that we do, especially in Northern Ireland; that to have such a list would mean that CHIS were tested against it; and that the Human Rights Act provides sufficient protection in any event. Despite the briefings which the Minister and the Security Minister have kindly arranged for me, I am afraid that I am yet to be fully convinced.

First, I wonder whether the nature of serious crime in this country is really so different from that in Canada, Australia or the US, each of which has some sort of list. Northern Ireland is mentioned, but given historical experience, it might be thought that the public reassurance given by a list would be of particular value in Northern Ireland. The principled objection to a list is rather diminished by the fact that the new Section 29B(10)(a) will empower the Secretary of State to create just such a list in secondary legislation. This, however, is no merely technical or topical concern, such as might justify the Government in reacting on the hoof to some future scandal. The content of the list is surely something that Parliament should consider coolly in advance, and not just to debate but to amend.

As for the Human Rights Act, it is unfortunate that there seems to be no easy way for the police or anyone else to translate what the Government characterise as its protections into clear and comprehensible operational advice. I have a good deal of sympathy with each of the various points made by the Joint Committee on Human Rights in chapter 4 of its report, some of which have already been echoed in this debate. Though I do not repeat them here, I very much hope that, before Report, we will see a detailed and convincing response to all of them. Included in that, I suggest, should be a fuller explanation of paragraphs 14 to 16 of the ECHR memorandum, which has, perhaps understandably, generated a degree of concern.

What of the argument based on the testing of CHIS? The more I think about this, the less I understand it. Suppose that we amend the Bill to say, “CHIS cannot be authorised to rape.” Suppose then that the gang asks an individual to rape and that the individual refuses. What does that tell the gang? One possibility is that the individual simply has scruples that he is unwilling to set aside. Another is that he may be a CHIS whose authorisation does not stretch as far as rape or who has been advised by his handler not to rape. Whether or not the crime of rape features on a prohibited list has no bearing on the issue, unless one assumes, absurdly, that every CHIS will be authorised to commit all types of crime not on the prohibited list and will make full use of that authorisation whenever the opportunity presents itself. The reality surely is that CHIS will continue to be authorised in only limited respects, no doubt falling far short of sexual crime, and that a refusal to rape, murder and torture cannot, therefore, be a meaningful indicator of CHIS status.

It is hard to understand why a short list, bearing no relation to the types of crime that will routinely be authorised, should increase the risk to a CHIS or make it more likely that he will be successfully outed as a CHIS by the criminal group in which he is embedded. If public reassurance requires it to be known that undercover police may not form intimate relationships, as it evidently does, then why should it not be known that CHIS cannot be authorised to commit—at least—the trio of torture, murder or rape mentioned in the amendment of the noble Lord, Lord Cormack? I look forward to any guidance that the Minister can give on this point. This is important stuff, and if the Government are right, we really need to understand why.

I venture to suggest that the extensive powers in the Investigatory Powers Act 2016 were endorsed by Parliament because they were accompanied by equally strong safeguards, and also because the agencies and others were prepared to go to unprecedented lengths to explain why they were needed. They explained their case fully and frankly, at a detailed operational level, to trusted interlocutors such as the team that produced the bulk powers review in 2016 under my leadership. They also explained it as fully as they properly could to Parliament and the public as a whole. I hope that that lesson has been fully learned, because, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has already indicated, it may be needed on this Bill too.

Hate Crime: Misogyny

Baroness D'Souza Excerpts

Monday 23rd November 2020 Lords Chamber

[The Lord Speaker (Lord Fowler)]

With apologies, I think I will move on. I call the noble Baroness, Lady D’Souza.

[Baroness D’Souza (CB) [V]]

My Lords, hate speech that results in criminal actions such as incitement to violence is to be both deplored and subject to legislation. That said, I am concerned that one of our most precious democratic freedoms—freedom of expression—might be hampered if this is widely applied to include any offensive or misogynistic speech. The distinction between unpleasant, even hateful, speech and criminal incitement is often determined by the context in which it occurs. Does the Minister agree that each hate speech incident should be considered on a case-by-case basis rather than by means of broad legal sanctions?

[Baroness Williams of Trafford (Con)]

I certainly agree that freedom of speech is one of the most precious things we preserve in this country, but it comes with responsibility. Where freedom of speech is used as an excuse to inflict a hate crime on someone else, that line has been crossed.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness D'Souza Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Baroness D’Souza (CB) [V]]

Most of what I wanted to say has been said, and eloquently said. I will merely emphasise two points before I metaphorically sit down. The Government justify the absence of limits on the potential criminal activity that the Bill enables by saying that to do so might serve to expose active agents. Furthermore, HMG argue that there is no need to include such limitations in the Bill, as has been the case in similar legislation in Canada and the USA, on the basis that the UK is party to the European Convention on Human Rights, which is incorporated in the Human Rights Act 1998, and is therefore bound by the terms of the convention. However, at the same time and in almost the same breath, the Government said, in legal filings, that they do not believe that covert agents should be bound by the terms of the Human Rights Act. Additionally, since the Human Rights Act specifically precludes murder, torture or other degrading behaviour, which surely covers sexual violence, the argument that naming limits might endanger agents rather falls to the ground. Will the Minister clear up these ambiguities?

Secondly, the Bill relies heavily on oversight by the Investigatory Powers Commissioner, the right to lodge any complaint with the tribunal and additional oversight —oh, I fear I have lost my text. Forgive me. What I was going to say is basically that dependence on the Investigatory Powers Commissioner, when there are no fewer than 14 authorising authorities bound to ensure that any criminal activity undertaken must be proportionate, necessary and at the lowest level possible to achieve the aims of the particular operation, is surely too much to ask. One could rely on the ISC, but we all know that too often the ISC has not received full or timely information to fulfil its function, and the tribunal itself will obviously take place after the criminal act has been committed. For that reason, I ask the Minister to clear up what seem to me to be ambiguities.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We are going to make a final attempt to return to the noble Baroness, Lady Whitaker. We hope that, on this occasion, the gremlins have finally been removed from the system.

Immigration Bill

Baroness D'Souza Excerpts

Tuesday 10th May 2016 Lords Chamber

[The Lord Speaker (Baroness D’Souza)]

The original Question was that Motion A be agreed to, since when Amendment A1 has been moved to,

“leave out from ‘House’ to end and insert …‘do insist on its Amendment 84’”.

The Question, therefore, is that Amendment A1 be agreed to. I should inform the House that if this amendment is agreed to, I cannot call Amendment A2 by reason of pre-emption.

[Baroness Hamwee (LD)]

My Lords, many of your Lordships will have negotiated a variety of agreements and arrangements, been involved in the toing and froing of proposals and counterproposals, and experienced the feeling of, “Okay, enough, let us move on”.

I do not equate that with this issue. I am realistic enough to understand where the Government have got to, but it is not far enough. From my privileged, comfortable position, compared with the asylum seekers, the subject of these amendments, I cannot leave it there. I do not feel, in the words of the noble and learned Lord, that I have done my job and done more.

I want to make it clear that I support the noble Lord, Lord Ramsbotham. To deprive an individual of liberty for the purposes of immigration control should be an absolute last resort. It should be comparatively rare and for the shortest possible time. At the last stage but one of this Bill, the Government introduced their amendment for automatic judicial oversight. We heard then references to detainees still being able to apply for bail and to access legal advice at any time, and so on. That painted a picture which, though technically correct, did not accord with the realities described to me over the years.

The noble and learned Lord introduced the automatic hearing after six months as a “proportionate response”, and said that earlier referral might result in work for both the tribunal and the Home Office at a time when an individual’s removal from the country was planned and imminent. So I was pleased last night that the Minister in the Commons, “after careful consideration”, moved a reduction from six months to four months to reflect the fact that the vast majority are detained for fewer than four months.

At the end of last December, on the latest figures that we have, 2,607 people were detained. Of these, 530—roughly 20% of the detainee population—had been detained for less than four months but longer than two months. Those are the numbers that my amendment is about, although they are 530 individuals, not just faceless numbers.

The impact of immigration detention, which is not a sanction—it is not punishment for wrongdoing—is considerable and reference has rightly been made to the particular impact on mental health. I look forward to Stephen Shaw’s further work and hope that it will ameliorate conditions, but there must always be a significant impact. I do not know, though I can speculate on, the Government’s reason for moving from the proportionate six months to four months, but if they can move, I suggest they can move further. In the mix of assessing what is proportionate, the impact of administrative detention must be a significant factor. Let us reduce it as much as possible. That is why I propose two months.

I take this opportunity to say, too, that in all this I do not want to lose sight of the objective of improving the whole returns process. Alternatives to detention with case managers who are not decision-makers would be more humane, less costly and more efficient. There is plenty of experience of that in other countries. An improved returns system would reduce the burden on tribunals and the Home Office. It may be trite but it is true that efficiency is much of the answer. I hope noble Lords will be sympathetic to my proposal to reduce it still more, and take us further on the journey that the Government have led us on with regard to the period when there must be an automatic judicial oversight of each individual’s position.

Modern Slavery Bill

Baroness D'Souza Excerpts

Monday 8th December 2014 Lords Chamber

[Lord Warner (Lab)]

My Lords, I rise to move Amendment 66 and speak to Amendment 68 in this group. I am pleased to see that the noble Lord, Lord Bates, has been in his place for some time. No doubt he will have noted the warm words given to his colleagues from another department about the concessions granted during consideration of the Consumer Rights Bill in this House. I am sure that he will want to be no less able to receive such tributes from us all at the end of this particular Bill.

Amendment 66 would remove subsections (1) and (2) of Clause 41 and replace them with a broader, more ambitious and clearer description of the functions of the anti-slavery commissioner. These changes are more in keeping with the advice in the report of the Joint Committee on the draft Bill, of which I was a member, based on the evidence that we received. We received a very large amount of evidence on this issue, particularly from those rapporteurs and quasi-commissioners in other countries with long experience of working in this sphere.

My Amendment 66 proposes that the wording of the Joint Committee’s own draft Bill, at Clause 33(1) on page 28 of the Joint Committee’s report, should be used in place of the Government’s approach. Amendment 68 elaborates that role internationally and in terms of partnership working. There is a fundamental difference between the Joint Committee’s view of the anti-slavery commissioner’s role and that of the Government. As the Home Office Minister told us rather graphically in oral evidence—captured in paragraph 156 of the committee’s report for those who wish to see it in all its glory—the commissioner was intended to be,

“the person who put the rocket up the law enforcement agencies”.

Thankfully, she did not go into more detail on how that might be done.

The Joint Committee’s approach was to define the role rather less colourfully but more broadly. Based on the evidence from overseas, particularly that from the highly effective Dutch and Finnish national rapporteurs, we saw the commisioner’s role as covering what we called the three Ps of combating modern slavery: prevention, protection and prosecution. To these we added a fourth P: partnership. As we said on page 84 of our report:

“It is essential that the Commissioner is empowered to work with national and international partners and to promote and facilitate domestic and international collaboration on the part of others”.

My Amendment 66 is broadly drawn and enables the commissioner to undertake the four Ps that I have mentioned. My Amendment 68 makes the international dimension explicit and makes clear that the commissioner is not restricted to the enforcement agencies as to where he distributes his “rockets”, to borrow Karen Bradley’s terminology.

I recognise that this more widely drawn role may well not commend itself to Home Office Ministers and officials. However, I would ask them to go back and read, or reread, the evidence given to the Joint Committee from experienced overseas equivalent commissioners. The unanimity of view among those witnesses was astonishing. Perhaps I may give the House a few examples from that evidence specifically on the importance of the role of embracing protection of victims. The US Ambassador-at-Large to Monitor and Combat Trafficking in Persons, Luis CdeBaca, emphasised the indivisibility of protection, prosecution and prevention. The Dutch rapporteur said:

“Protecting victims and prosecuting criminals are two sides of the same coin”.

These witnesses found it strange that we should be going to all the trouble of fashioning a Modern Slavery Bill and then appointing an anti-slavery commissioner with such a narrow remit. The Modern Slavery Bill evidence review has recommended that the commissioner should,

“represent and give a voice to the concerns and best interests of victims and survivors of modern slavery”.

The UN High Commissioner for Refugees concurred.

Despite this evidence, the Home Secretary has chosen to draw the remit narrowly in the present draft of Clause 41. Even though the victims are mentioned in Clause 41(1)(b), it is only in terms of “identification”. There is nothing about their protection in the commissioner’s role, as the Joint Committee clearly recommended in paragraph 160 of its report. As we said there: this,

“is fundamental to achieving the Government’s aim of improved law enforcement”.

If the commissioner is to be given a wider role, as the amendments in this group all propose, he clearly has to have the freedom to decide the priority for his work within the budget available to him and to expect his reports to be available promptly to Parliament. That is why we had what I suggest was the forceful discussion on his independence during our previous Committee day, and why I and others will be challenging the Home Secretary’s control in the next group of amendments. These groups of amendments are all of a piece; they are all about the independence of this commissioner including a wide brief that will enable him to help the country to combat trafficking and exploitation of victims, both here and abroad. The Home Secretary really has to think again on these issues if she wants the kind of world-class Act which she claims will result from this Bill to be a reality. I beg to move.

[The Lord Speaker (Baroness D’Souza)]

If this amendment is agreed to, Amendments 66A to 67ZAA cannot be called by reason of pre-emption.