Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I, too, thank the Minister for her introduction. I agree with the noble Lord, Lord King, that the speeches we have heard so far have given us a thoughtful and helpful context for the Bill. I speak from the Liberal Democrat Benches, but also as a member of the Joint Committee on Human Rights. The two positions are not incompatible, as my noble friend Lord Marks has indicated; indeed, the reverse is true.

As background to some of my remarks, I shall quote two paragraphs from the report on the Bill that the committee published earlier this year. It stated:

“Our Committee recognises the need for the Government to have strong powers to defend our national security, prevent individuals from being drawn into terrorism and to punish those who prepare, commit or instigate acts of terrorism, or encourage or connive with others to do so. However, when these powers interfere with human rights, they must be clearly prescribed in law, necessary in the pursuit of a legitimate aim, and proportionate to that aim”.


It went on:

“We are concerned that some of these ‘updates’”—


that is, updates to existing offences—

“extend the reach of the criminal law into private spaces, and may criminalise curious minds and expressions of belief which do not carry any consequent harm or intent to cause harm. In doing so, some of these offences risk a disproportionate interference with the right to privacy, the right to freedom of thought and belief, and the right to freedom of expression”.

I think our Minister will understand that approach, but I am afraid I am not being consensual in this and I cannot let today pass without responding to comments made by the Security Minister, Mr Wallace. At Third Reading in the Commons he criticised the JCHR for not taking wider evidence. He said:

“It took evidence from Cage and other such groups”.


I do not know who he was referring to among the 13 who, in response to an open call, gave written evidence. They included such dodgy characters as the National Union of Students, the Muslim Council of Britain and Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation. The committee took oral evidence from Max Hill, still—just—the current independent reviewer, and from Liberty, and invited oral evidence from the Metropolitan Police, the Commission for Countering Extremism and the Investigatory Powers Commissioner. There was a very tight timetable and, although they were invited, they were unable to attend.

Not only did Mr Wallace impugn our witnesses, he went on to say of the committee that,

“I think its duty was to be balanced”,—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 11/9/18; col. 717.]

and said in a letter to the committee that our report was not set in the context of current threats. I accept that liberty requires security, and I resent very much the suggestion that the committee was not balanced. I resent that too on behalf of our witnesses who, on the basis of their own experience and backgrounds, would have been irresponsible if they had not voiced their concerns. Max Hill went out of his way to give credit, as he put it, to the Government before his more negative comments. He said:

“There are some good, pragmatic solutions here for the modern world, but there are some aspects of the extension of existing offences that give me serious cause for concern”.


I also resent the suggestion that the committee ignored or was unaware of the threats, which have of course been referred to and described in this debate. I hope that by the end of the debate the Minister will have found a different formula to describe the committee’s work, including acknowledging that—like human rights, which are a matter of proportion and balance and are the scale against which we measure propositions—the committee’s approach has been balanced.

It is in the nature of scrutiny that we focus more on issues of concern in these debates. At this stage there is time only to give a flavour of these; we will have opportunities later. I say that particularly to those outside this place who have sent us briefings. Not referring to those briefings and organisations does not mean that they are ignored; on the contrary, they are very much appreciated.

I start with the new offence in Clause 1. We are troubled by the lack of clarity coupled with the low threshold of recklessness. I am also unclear whether expressing an opinion using social media—I might plagiarise the observation that ISIS knows more about it than I will ever do—and directing that opinion to someone when it is on social media, and open to whoever cares to look at it, comes within the offence. There is a lot of material for the lawyers who will help us on matters of construction. However, I will say now that arguments from the Government that we should be reassured by the prosecution’s sensible use of the public interest test are unlikely to convince me, because that is no substitute for getting the legislation right.

The new offence in Clause 2 also seems to have a low threshold. What if the suspicion is reasonable but wrong? We will no doubt spend time on the reasonable excuse defence to accessing material in Clause 3. The point was made in the Commons that in legislating for a reasonable excuse without including a lack of terrorist intent as an excuse, we could be thought to be intending that not to be an available excuse. Additionally, here and elsewhere we seem to be in the territory of reverse burdens, the burden being on the defendant—guilty until proved innocent.

One of the reasons given by the Minister in the Commons for Clause 4 was,

“to strengthen the Government’s … advice to British nationals … against all travel to areas of conflict where there is a risk of terrorism”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 11/9/18; col. 656.]

I am not sure that it is necessary to create an offence to make it clear that the advice is to be taken seriously. I also wonder whether there will be a correlation with what are regarded as safe places for the purposes of deportation.

Reasonable excuse is a defence. What thought have the Government given to getting their defence in first? I doubt that a comprehensive list could be assembled, but some situations are obviously relevant. If your objective is journalism or humanitarian work, the clauses provide for the designation of areas but there is no arrangement for licensing travel, if I can use that term rather broadly.

I have one specific example which I do not think has been mentioned: funerals. Certain faiths require funerals to take place very soon after a death, and families will be in some difficulty in that situation. This seems to be a provision which makes it an offence to think and to be, as distinct from doing.

My noble friend Lord Marks has been very persuasive about sentences and sentence inflation. Is there any evidence of a deterrent effect of such increases, which seems to be part of the rationale here? Conversely, should we not be aware of the potential for people to be presented as martyrs?

Border control provisions take up about half of the Bill’s length, although they may not take up half of our time in the Chamber. I look forward to hearing the analysis of the noble Lord, Lord Anderson, of the restrictions on the use of what someone says when he is stopped at the border and the limits of those restrictions, both in the Bill and as applied to the continuing Schedule 7 procedures.

We shall need to be clear about how the Schedule 3 powers are expected to be operated. It seems that decisions to stop and search individuals will be informed—and known to be informed—by intelligence of travel patterns, which seems to me to weaken the argument for a no-suspicion power, which is inherently unchallengeable.

We will need very persuasive arguments about the extensive definition of a hostile act. The economic well-being of the UK in a wide sense will be discussed in other contexts at the same time as the passage of the Bill. I simply ask here whether that phrase is intended to address cybersecurity.

Serious crime is obviously not to be condoned, but is not the most serious if it attracts only a three-year sentence. As defined, it is crime which may be on behalf of another state. Are we now to have stops if there is suspicion—or no suspicion—of someone travelling while Russian or travelling while Asian?

This House has previously made clear its view of the importance of access to a lawyer and the confidentiality of the relationship between a client and his lawyer as to both advice and material. I am sure that we will do so again and ask why the existing protections against dodgy lawyers are insufficient.

I knew that the Minister would tease me about the role of local authorities on Prevent. I have looked at the exchange on my amendment during the passage of the 2015 legislation. I am very flattered that anyone recalled it and took the trouble to look it up and brief the Minister on it. I have to say that I do not understand why my amendments were resisted then but are now in the Bill. They put local authorities and the police on a similar footing. There are a lot of issues about the powers, duties and functions in what I would call a safeguarding as well as a security activity, as well as resources, of which local authorities have a good deal less than they did in 2015. That thread runs through everything.

In conclusion, it is not surprising that lawyers, academics, journalists and people generally concerned with free thought, free speech and human rights have raised issues about the Bill. These Benches and the Joint Committee on Human Rights on a cross-party basis look forward to a vigorous Committee aimed at achieving a balanced Bill.

Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

2nd reading (Hansard - continued): House of Lords & 2nd reading (Minutes of Proceedings - continued): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I support the intentions of the Bill. I will say a little about the context that has not already been covered by the many speeches we have heard today, and will then say little about three of the clauses that have been mentioned. Before that, I will respond to the excellent speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie, both of which were informed and entertaining. The noble Lord, Lord Tyrie, who is not here at the moment, referred at the end of his speech to extradition cases. Although he talked about three of the inquiries that have taken place, he did not refer to one police investigation which delayed the conclusion of the first inquiry. Should there ever be a judge-led inquiry, as he would prefer, I hope that the Belhaj case that the Crown Prosecution Service decided not to pursue will be made available to that inquiry, as it would provide vital information that would help inform any future decisions in that area.

Secondly, the noble Baroness, Lady Warsi, has concerns about Prevent. I do not particularly share those, but I agree with her that cohesion and integration are a vital element in preventing terrorism in the future. Usually we see two elements where we get radicalisation: a lack of integration and Middle East foreign policy. Those two things tend to repeat time and time again. This is not necessarily my view of Prevent, but minority communities have become so concerned about it, and it is a strong thing, not a weak thing, to review something. The time has come to at least look at it and perhaps move on. It has achieved a lot but may yet achieve more if we are able to be flexible.

We are still reaping the effects of two civil wars which started more than seven years ago: one in Syria in 2011 and the other in Iraq a few years later. At least 12,000 people travelled from Europe to fight, particularly in Syria but also in Iraq. We know that at least 15% of the 900 UK people who went died, and that about 55% of them have returned. Some went for humanitarian purposes and some to fight. We have seen the effects of that terrorism on the streets of Brussels, Nice, Paris and, sadly and more recently, London. The next phase of our fight against terrorism is now evolving. I suggest that the Bill is a good time for us to reflect on our preparations for that future.

It will have three distinct elements that we need to plan to combat. The first is the potential for those foreign fighters to return. They are brutalised, and dangerous because of their training and their motives but also because they are now in contact with a network of other terrorists, and they may still perpetuate conspiracies. The second is the release in the coming years, and even now, of the first wave of prisoners convicted of terrorist offences during the last five to seven years. Sometimes they were convicted of other criminal offences, because, although we believed that they had a terrorist motive, we could convict them only of a criminal offence.

In prison they met people called criminals. Many of the people who we are suspicious of and worried about do not have a criminal background. That is of great benefit, because it means that they do not have access to organised criminals, who are the means by which criminals generally get hold of firearms. They have now met a lot of people in prison, and on their release they will still have those associations, along with the people they met in prison who may have become radicalised.

Finally, the terrorists will have learned from the first series of prosecutions, because the prosecutor reveals the tactics by which they were caught, and that means that they will adapt. We see that with various generations of terrorists, who adapt their tactics to meet their failures, as they see them, when successful prosecutions occur.

I will not repeat the numbers we have already heard for what I always think of as the pyramid of doom: the 20,000 subjects of interest, the 3,000 subjects of current interest, and, as we heard from the noble Baroness, Lady Manningham-Buller, the 500 security service operations. There are a further 600 counterterrorist police operations, so that is over 1,000 live operations dealing with this threat.

The point I am supporting is that it is clearly fair to say that we have a serious threat now, as described in the threat assessment, but the numbers alone are concerning. It is a real threat that we must all think about. It is, of course, evolving, and the vectors through which the threat operates are evolving too. We need to respond in a proportionate and incremental way; I would argue that, in legislative terms, the UK has responded incrementally. We have not seen the mistakes that, sadly, those with more experience of terrorism in Northern Ireland saw, when general internment caused more problems than it solved. We should approach the problem incrementally and see whether we can adapt; then, if we need to legislate, let us legislate to the problem, not use generic legislation. We need always to keep a majority in our society—and our minority communities in particular—on side.

The question is: if the threat has evolved in a way that requires new legislation, what is it that we are trying to address? The simplicity and volatility of the threat require us to intervene earlier to protect the public, individuals and groups. We need to make sure that a process that goes from planning to attack in a matter of hours is interrupted quickly. Also, offences previously considered peripheral and minor are now seen as indicative of a volatile, unpredictable actor. We do not want to wait for high-level offences before taking action, given how rapidly that threat can escalate; we need lasting disruptive impact and control of offenders, which is where lengthier prison sentences can have an impact.

The noble Lord, Lord Marks, is not in his place, but I agreed with a lot of what he said; the tests he applied were sensible. I agreed with an awful lot, but one of the reasons he gave for not extending sentences, if I understood him correctly, was that our prisons are already full and therefore we cannot get more prisoners in. If that is the case, we none the less ought always to find room for terrorists, even if that means excluding other people. In fact, the prison population is starting to drop now—albeit, I would argue, not enough, but we must always find space for terrorists if we consider that they are committing serious offences.

We must also think about technological changes; a significant amount of our coverage of people involved in terrorism concerns their online persona and methods of communication. As we have heard, it is 20 years since legislation set out the various ways in which we can monitor that technology. Particularly in the streaming area, this is a good time to make sure that we can monitor in the way that we need to, and prove offences. We know that radicalisation is happening in a very powerful and influential way by streaming video. It seems to be an incredibly useful way for people to get over quickly some very dangerous methods of implementing terrorist attacks.

There have been some criticisms of the Bill already and we have heard more of them today; I do not necessarily support them all. In the debates to come, I am sure that improvements will be made forensically to the eventual Act when it is concluded. There is a concern that the Bill will capture innocent or accidental online activity, but none of the proposed offences is absolute, as they are in child sexual exploitation offences. Intent has to be proved. In any event, all cases must pass three tests, including sufficiency of evidence and public interest. I know the noble Baroness, Lady Hamwee, was not convinced by the public interest test, but I am; I think it is a thorough test, supplied by an independent prosecutor, with good lawyers in the CPS, and my experience is that they are quite hard to persuade of something I might find blindingly obvious.

[Baroness Hamwee]

Perhaps I could explain that my concern about the public interest test is that we should not be forced to rely on it; we should get the legislation certain and reliable rather than look to public interest as the mechanism to catch what we have not been able to solve in the legislation.

[Lord Hogan-Howe]

The noble Baroness did make that point, and I accept it. My third point is that the prosecution has to overcome any reasonable excuse defence. That is the third measure which I think is helpful in reassuring those who might not be persuaded by the first two tests. Only rarely will a single action or statement be a basis for a charge, as we have seen on many occasions. We heard of the Choudary case, which I shall come back to. In that case, it took an awfully long time to prove a criminal offence, and I think that this strikes the right balance between protecting society and protecting the rights of the suspect.

I will mention a couple of clauses which I particularly support. The first is Clause 4. I argued for this measure about two or three years ago and it relates to the concerns of the investigators. I argued that having a designated area is particularly helpful. Investigating an offence that has occurred within a failed state, such as Syria or Iraq, can be particularly difficult. There is no one at the border keeping a clear register of people who have travelled across it, and there is no easy state mechanism for gathering evidence, particularly from number plate recognition, CCTV, hotel records or anything else that you might want to access. That is particularly difficult in a failed state. So saying “Please give me all the evidence to prove that offence” when people return is a particular challenge for investigators.

I accept that we have intelligence, but the distinction between intelligence and evidence is that we can use intelligence to gain evidence but only evidence can be put before a court. So this is an important change. I understand that some amendment might be needed in relation to humanitarian cases, which I do not think anyone is seeking to stop in any way, but I think that it is a particularly helpful development, and certainly I support it. In my view, it should have happened quite some time ago. Of course, it will not capture the people who are presently in Syria or Iraq, but that is not the intention here, and there is a cooling-off period of, I think, one month for future offences.

The second thing is that putting a responsibility on the traveller to explain why they went to a certain place would not be unreasonable. The Foreign Office will usually have issued a travel advice warning and a designated area warning—and finally there is the reasonable excuse defence. Given the threat that we face, these are not unreasonable things to ask of someone who chooses to travel to a war zone and is acting in a potentially treasonable way, as has been suggested in the past.

I also support Clause 1. I will not say a lot more about it, as others have covered it better, but I think that we have to capture the Choudary-type offence. Clever interlocutors or demagogues will adapt to the latest movement of the law and we have to adapt with them. They will always be clever and try to find a new way round it, so that we have to adapt. Although not the only one, Choudary was an example of where, no matter how hard the security services tried, they could not persuade the prosecutor that they had a case. I do not think that there was a lack of evidence; the law was not helpful and did not allow something that we all agreed was wrong to be prosecuted.

My final points are small ones. The noble Lord, Lord Rosser, mentioned the legislation relating to flags and the fact that removing a flag could cause tension. That is a fair point, but most police officers use discretion when making an arrest or an intervention. The display of a flag can cause tension too. People might remember an incident about four years ago in Parliament Square. When I was in charge of it, the Met was criticised for not taking from someone what appeared to be an ISIS flag. The officers were quite right to decide not to do so. First, the person involved was a seven year-old child and, secondly, the officers could not be absolutely sure that the flag they saw with Arabic writing on it was in fact a proscribed flag. They made a perfectly reasonable decision based on discretion. We expect that of officers and I do not see this as a particular problem.

I hesitate to make my final point because it concerns resources—although the noble Lord, Lord West, raises these points, so I do not see any reason why I cannot. I entirely accept that the Government have supported the police and the security services by maintaining resourcing for counterterrorism policing. That is a fair point and there is no argument about it. However, when you lose 20,000 police officers and probably 10,000 police community support officers, it is a real challenge. There are other things as well, but two-thirds of Security Service leads come from community contacts. That comes through neighbourhood policing, and that is the first thing to go when you lose 20,000 cops. So it is an important point and it needs to be considered.

Finally, I remind the House that the threat remains severe and is evolving. The society that we live in has progressed since the Terrorism Act 2000 and this Bill is a reasonable response. It should command the support of the majority and minority communities and, I argue, of this House.

Immigration Policy: Children and Parents

Baroness Hamwee Excerpts

Monday 10th September 2018 Lords Chamber

[Baroness Williams of Trafford]

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

[Baroness Hamwee (LD)]

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

Crime (Overseas Production Orders) Bill [HL]

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

21: Clause 5, page 6, line 21, at end insert—
“( ) the mechanism for enforcement.”

[Baroness Hamwee (LD)]

My Lords, this amendment is grouped with Amendment 22 in the name of the noble Lord, Lord Rosser. We are both interested in how orders are to be enforced. I have to say that I think both amendments are slightly circular. That might mean that they are elliptical—I am not sure. However, we are probing at this stage; I hope that the Minister will take that point.

There are obvious difficulties with enforcement in respect of data held by an entity that is not in the UK and which does not have a base or assets in the UK. We are told in Clause 6(4)(a) that the provisions apply regardless of where the data is stored. I do not know whether “extraterritorially” in the sense of outside the earth, as distinct from in another country, applies here. I simply do not understand how the technology works.

It seems to me that the enforcement will have two aspects: a sanction for non-compliance and ensuring the actual production of the data. So my first question is: will the mechanism for enforcement be in the co-operation arrangement and, generally, how are we to expect the issues that I have raised to be dealt with? I beg to move.

[Lord Rosser (Lab)]

I shall speak to the amendment in my name, which, as the noble Baroness, Lady Hamwee, said, has in effect the same objective as the amendment which she has just spoken to and moved. The purpose of our amendment is likewise to find out to what extent and by what means overseas production orders can and will be enforced where there is a bilateral or wider international agreement for an overseas production order made by a court in this country and one made in another country and served on a provider in the UK.

In Committee last Wednesday the Government stated that the reference at Second Reading that,

“UK-based providers will not be compelled to comply with overseas orders”,—[Official Report, 11/7/18; col. 929.]

meant that while,

“UK companies are not compelled by UK law”,

to comply with a production order,

“they may be compelled by the other jurisdiction … depending on the country in question”.—[Official Report, 5/9/18; col. GC 143.]

Bearing in mind that considerable progress appears to have already been made towards concluding a bilateral agreement on overseas production orders with the United States in line with the Bill, will an overseas production order made by our courts in respect of an American-based service provider be enforceable—and, if so, how, by whom and with what sanctions available if there is non-compliance?

Likewise, in the light of the Minister’s comment last Wednesday that UK companies might be compelled by the other jurisdiction to comply with their production order, how will such an order made by an American court in respect of a British-based service provider be enforceable, by whom and with what sanctions available if there is non-compliance? In addition, what do the Government consider would be the basis of appropriate and acceptable enforcement arrangements in both directions for any other countries with whom we might conclude bilateral arrangements in respect of production orders under the Bill?

Last Wednesday in Committee, the Government said that,

“it is reasonable to expect that some form of dispute resolution mechanism would be in place to help determine any differences in the event that there is a dispute over compliance with an order”.—[Official Report, 5/9/18; col. GC 141.]

That statement was, of course, in line with what the Government had said in the Minister’s letter of 20 July following Second Reading. That letter referred to the Government expecting any bilateral agreement to include a mechanism for escalating any dispute over compliance.

But should the letter not have said that the Government “will” require a bilateral agreement to include such processes and procedures, rather than just that they expect that it will? Would the decision of such a dispute resolution mechanism be legally binding? If so, on whom? If not, what would happen if the dispute resolution mechanism failed to resolve the dispute? As I understand it, some service providers have welcomed the Bill because it will provide them with cover when making available electronic data, if done under the Bill’s provisions, from other potential legal proceedings. If that is the case, would that legal protection be provided by the Bill if it was not capable of being legally enforced in one or both directions?

What kind of issues in dispute could be addressed through the suggested dispute resolution procedure mechanism? Who would mediate or arbitrate if such a mechanism was in place? Would there be legal representation? How would the mechanism be activated and by whom? Who would pay the costs? Would the dispute procedure have to reach a conclusion or decision within a fixed maximum timescale? Would the dispute resolution mechanism for any bilateral agreement on production orders with the United States be the same in the United States and the UK, working to the same standard and principles and applying or not applying the same sanctions? If there is to be any enforcement by the courts, through which court would an overseas production order made in this country be enforceable, and through which court would an overseas production order made in the US or another country in respect of a British service provider be enforceable? After at least two years of discussion with the United States on the proposed agreement, the Government must have some specific answers to these questions.

--- Later in debate ---

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

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

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

Amendment 21 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

23: Clause 6, page 7, line 6, leave out from second “data” to end of line 8

[Baroness Hamwee]

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

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

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

[Baroness Williams of Trafford]

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

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

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

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

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

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

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

[Baroness Hamwee]

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

Amendment 23 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

24: Clause 7, page 7, line 12, after “revoke” insert “(in whole or in part)”

[Baroness Hamwee]

My Lords, my Amendments 25, 26, 28 and 35 are also in this group. The noble Lord, Lord Rosser, has given notice that he intends to oppose Clause 7 standing part of the Bill. I assume that that is to probe the operation of the clause. I am sure he takes the view that I do—that one would not want to accept that these orders can be made without the possibility of variation, revocation or, in the most general sense, appeal.

On Amendment 24, I am ready to be told that it is not necessary to spell out that revocation or variation can be,

“in whole or in part”.

I realise that a part-revocation is probably a variation. We also find the non-disclosure requirements rather troublesome. Amendment 25 seeks to probe the procedure for opposing the non-disclosure requirements. Amendment 26 is part of the same question about how you appeal against them.

Clause 8 provides for non-disclosure of the existence of an order, as distinct from non-disclosure of its contents. There is something rather concerning about not being able to say that an order is in existence. If a data subject asks the internet service provider, it cannot even say, “We will have to refer to the judge”—or can it? I am not sure. The sanction here, presumably, would be contempt of court. I have already referred to whether that is an effective sanction in the case of an overseas or international body. I was reminded of super-injunctions when I read this. They do not have the greatest reputation. Presumably the Minister will remind us that disclosing the existence of an order to a subject could hamper the work of law enforcement or security. All my instincts are that somebody who is affected by an order should know about it. Perhaps the Minister could take this opportunity to explain the operation of it.

Amendment 35 is another probing amendment, about how one appeals, in this case against Clause 13. But my major concerns are around Clause 8. I beg to move.

[Lord Rosser]

As the noble Baroness, Lady Hamwee, said, I have tabled a Clause 7 stand part debate, which is intended to provide an opportunity for the Government to explain in a bit more detail why this clause is deemed necessary and how and in what circumstances it is intended to operate. In what kinds of circumstances do the Government envisage it being necessary to vary or revoke an overseas production order, and how many times has that happened in respect of domestic production orders, compared to the number of such domestic orders issued? Does the varying or revoking referred to in Clause 7 apply to overseas production orders made in this country or to such orders made in the country with which we have a bilateral agreement and applying to British service providers—or, indeed, does it apply to both? In what circumstances would the Secretary of State, rather than the appropriate officer who applied for the order or any person affected by the order, be likely to seek to vary or revoke an overseas production order?

Will the application to vary or revoke be heard by the judge who made the original order, and what information, or indeed anything else, will be required from an applicant seeking to vary or revoke an overseas production order before court time is granted to hear their application? What will be the test, if any, in terms of the extent or otherwise of a proposed variation being sought before it can be considered or granted? Does the reference in Clause 7 to the requirements in Section 4(2) to (6) continuing to be fulfilled, or being fulfilled, apply to the variation that is being sought or to the original overseas production order as altered by the variation?

Once an overseas production order has been served, the recipient has, I believe, as a standard, seven days to act on it. Presumably that means that an application to vary or revoke by the recipient as a person affected by the order has to be made within those seven days. Is that in fact the case? If it is, is it not a very short period of time, particularly if it is also envisaged that a judge will have to deal with any application to vary or revoke within that seven-day period, or will a judge be able to extend the period already laid down for the electronic data specified in an overseas production order to be produced if an application to vary or revoke has been made?

Finally, what will be the maximum period of time within which applications to vary or revoke must be determined by a judge, and who will be given notice of an application to vary or revoke an overseas production order, and in what circumstances, and thus have the opportunity to support or contest the application?

--- Later in debate ---

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

Amendment 24 withdrawn.

--- Later in debate ---

[Lord Rosser]

I will be very brief. Clause 9(1) states that an overseas production order that is not served within a period of three months is automatically quashed. My Amendment 29 would reduce the three months in the Bill to two months. The purpose of the amendment is to give the Government the opportunity to say why it is felt that as long a period as three months is needed before an order is quashed if it has not been served.

As the Minister said in the previous discussion, the purpose of the Bill is to provide a much faster means of obtaining electronic data than is currently available under the mutual legal assistance process, which can and does take months. Bearing in mind the need for greater speed in respect of serious crime and terrorism offences or investigations, why could it then take as long as three months to serve an overseas production order once it had been made, and for the specific requirements set out in Clause 4(2) to (6) to be met? Why would two months, as suggested in this amendment, be insufficient, and if it is deemed by the Government to be insufficient, in what kind of cases or circumstances would that be the position? I beg to move.

[Baroness Hamwee]

I have not got a lot to say on this—but I will say it nevertheless. On Amendment 29, I agree with the noble Lord, Lord Rosser, that if there is an order it should be served quickly—although my reaction was, “If it’s so objectionable that the period should be reduced, there shouldn’t be an order at all”. However, in light of his remarks, perhaps I misunderstood the direction in which he is going.

Amendments 36 and 37 are grouped with Amendment 29 and relate to Clause 14, which is about “means of service”. Clause 14(3) refers to service on a person outside the UK by delivering the order or notice, or whatever it is, to that person’s office or place of business. I wonder whether a person could be outside the UK but at the same time have an office in the UK—unless its base is outside. I am not quite sure what those words mean in context.

Amendment 37 relates to Clause 14(3)(a), which says that service can be made by delivery to a place,

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

What does “conducts activities” mean if it does not amount to carrying on business? Is this just a bit of belt and braces? If it is, I would not take exception, but I wonder whether the phrase is normally used, because it seems to be part of carrying on business.

[Baroness Williams of Trafford]

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

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

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

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

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

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

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

[Lord Rosser]

Bearing in mind that the Minister has said, without making any commitment, that she will reflect further on the amendment, I beg leave to withdraw it.

--- Later in debate ---

Moved by

[Baroness Hamwee]

30: Clause 10, page 9, line 16, leave out from “necessary” to end of line 18 and insert “for its use as evidence in proceedings in respect of the offence which is the subject (under section 4(3)) of the overseas production order in question.”

[Baroness Hamwee]

I do not suppose that that will trouble us in Grand Committee.

Clause 10 deals with the retention of data and its use as evidence. Clause 10(1) provides that data,

“may be retained for so long as is necessary in all the circumstances. This includes retaining it so that it may be used as evidence in proceedings in respect of an offence”.

“Necessary in all the circumstances” is quite a wide term. It may be unkind of me but, when I reread it yesterday, it felt as though the writer had run out of steam. One example is given but I would have expected more information about protections and clarification; otherwise, how does one challenge this? Therefore, the amendment is intended to ask the Minister how the Home Office envisages that this clause will operate in practice.

Given the example included, I wonder whether the Home Office anticipates producing guidance regarding retention, and that is the subject of Amendment 31. Amendment 32 is intended to probe the term “an offence”. Does this mean any offence? In particular, if an offence other than the object of this exercise is disclosed, is a fresh application needed or can this be—I will use the extreme term—an unending fishing expedition? I beg to move.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the noble Baroness, Lady Hamwee, raises three important amendments here and I look forward to the Minister’s response. She is right that, as written, the provision appears to be very wide in scope, and it would be better to have more clarification. The terms “in all the circumstances” and “an offence” are very wide, and it would be good to hear what they are. As the noble Baroness said, it would appear that there could be a never-ending fishing expedition, which in itself would not serve justice. I look forward to hearing the response to the very valid points raised.

--- Later in debate ---

[Lord Kennedy of Southwark]

I thank the Minister for saying she will look at those points. If we are mirroring PACE then we can mirror the guidance as well.

[Baroness Hamwee]

My Lords, I think I am going to have to spend some time between now and Report familiarising myself with PACE or hand this over to my noble friend Lord Paddick, whose bread and butter it was at one time. I take the point made by the noble Lord, Lord Kennedy, but I remain faintly uneasy about how open this is. Nevertheless I thank the Minister and I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

--- Later in debate ---

[Baroness Williams of Trafford]

Yes, I am.

[Baroness Hamwee]

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

[Lord Paddick]

My Lords, I am grateful to the Minister, and to other noble Lords, for their contributions. In essence, my question is: if the EU has to assess whether we are safeguarding its data, yet we are entering into agreements to give away that data to another country, will the EU need to be satisfied that that other country also has standards of data protection equivalent to or better than the GDPR? If not, we might be putting the adequacy judgments at risk. That is the essence of the amendment. I would be grateful for an opportunity to discuss this further with the Minister in the meetings between now and Report but, at this stage, I beg leave to withdraw the amendment.

Crime (Overseas Production Orders) Bill [HL]

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

1: Clause 1, page 1, line 10, at end insert—
“( ) A judge may order that notice of an application for an overseas production order be served on a controller or a data subject.”

[Baroness Hamwee (LD)]

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

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

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

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

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

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

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

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

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

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

[Baroness Hamwee]

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

Amendment 1 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

5: Clause 1, page 1, line 22, after “arrangement” insert “in the form of a treaty (as defined by the Constitutional Reform and Governance Act 2010) and”

[Baroness Hamwee]

My Lords, our exchange on the previous group of amendments, when the Minister gave a lot of assurances, makes me even keener on Amendment 5, which would require writing into the Bill that a designated international co-operation agreement must be in the form of a treaty. I understand that that is what was intended, so I think it would be more than appropriate to say so. Taking only the discussion about the death penalty, it argues for the amendment, given that the procedures for dealing with the treaty under the Constitutional Reform and Governance Act 2010 include safeguards to be met before a treaty can be ratified which include transparency, debate in public, and so on.

The Minister gave a list of matters—I failed to write down all of them—to which the Government would have regard. I got down trust, mutual respect, judicial oversight and “must be compliant with HMG guidance”. The reference to guidance has my antennae twitching in this context. We do not want to rely on guidance; we want to rely on legislative certainty and the involvement of Parliament.

The Minister said either at Second Reading or in a meeting before Second Reading—we are always grateful for such discussion—that the Government would not enter into an agreement with North Korea. I could add to that nightmare not a treaty but a memorandum of understanding with North Korea, which would come nowhere near Parliament. Our laws have protection against a mad Executive and we should commit to using them.

We have had a long but inconclusive discussion about how human rights would be protected. A statement to Parliament under the 2010 Act procedure would deal with this. It might also set out standard clauses. I am unclear whether we should expect standard clauses in different co-operation agreements. They should be relatively straightforward in most cases.

For similar reasons, Amendment 38 would apply the affirmative procedure to regulations designating the co-operation arrangement. We all know about the problems with scrutinising secondary legislation.

Amendment 6 is to ask what is meant by participation in this context. Clause 1(5) refers to an arrangement,

“to which the United Kingdom is a party or in which the United Kingdom participates”.

What is participation in this context? I beg to move.

[Lord Kennedy of Southwark]

My Lords, the noble Baroness has done her usual forensic job of going through the Bill and done a service to the Grand Committee. It is important that we are clear about what we are agreeing. I look forward to hearing the Minister’s response. It is right that Amendment 5 makes it clear that we are talking about the treaties which are subject to the Constitutional Reform and Governance Act 2010. It is a sensible move.

Amendment 6 is a probing amendment at this stage. What is meant by participation? If you are a party to something, then there is what you are participating in, so clearly the Government think that there are two different things. It will be good to hear the Minister’s view on the difference between those two things and why they both need to be in the Bill. I am sure that “form of a treaty” needs to be in the Bill.

Finally, Amendment 8 ensures that whatever regulation is agreed will be subject to the affirmative resolution procedure in the House. Again, I think that is important. Will the Minister confirm that the Government would do that anyway and, if so, say why it is not in the Bill?

--- Later in debate ---

[Baroness Hamwee]

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

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

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

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

Amendment 5 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

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

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

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

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


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

[Baroness Williams of Trafford]

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

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

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

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

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

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

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

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

[Baroness Hamwee]

Shall I ask the question again?

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

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

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

[Baroness Hamwee]

My Lords, I should just say that I accept that the terminology is used elsewhere: one of my amendments objects to its use elsewhere. I am still troubled by how it applies here, as I am not sure how one would apply for the revocation, but I will of course go back to look at it.

[Lord Rosser]

I thank the Minister for her response. I will reflect on what she said about Amendment 12. I was not entirely clear about her response to my question: if a view was taken that the term “terrorism investigation” was being rather loosely interpreted by a party to an international agreement on an overseas production order, how could that decision be challenged? I may have missed her response but, if so, could she repeat it?

--- Later in debate ---

Moved by

[Baroness Hamwee]

14: Clause 4, page 4, line 34, after “requirements” insert “which must be consistent with the provisions of this section”

[Baroness Hamwee]

My Lords, I have been consulting my noble friend as to whether I should be moving an adjournment so that we can all get a cup of tea or possibly soup, but he thinks that that is a matter for the Government Whip. So I will instead move Amendment 14—I do not think it will be exciting enough to warm us up.

Clause 4(1) applies requirements for seeking an overseas production order set out in subsections (2) to (6), and such additional requirements as the Secretary of State adds through regulations. I acknowledge that the regulations will be subject to the affirmative procedure but, as I said earlier this afternoon, we all know the problems of scrutinising secondary legislation and the almost insurmountable problem of amending or stopping it. We also know about the importance of protecting against an overweening or out-of-control Executive.

My amendment refers to the characteristics of the additional requirements as being consistent with the provisions of what will be Section 4, because the very fact that no limiting factor is expressed raises the issue. I accept, before the Minister says it, that these are additional requirements, so, in any event, they should comply with subsections (2) to (6).

Amendment 15 would leave out “(so far as applicable)”, because I for one do not understand what,

“additional requirements … specified in regulations … (so far as applicable)”,

means. The words must mean something. If the additional requirements are not applicable, they will not apply, so what are we worried about? I beg to move.

[The Deputy Chairman of Committees (The Countess of Mar) (CB)]

I tend to sympathise with the noble Baroness. I was warned to bring my coat in before I came.

--- Later in debate ---

[Baroness Williams of Trafford]

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

[Baroness Hamwee]

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

Amendment 14 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

16: Clause 4, page 5, line 8, leave out “substantial” and insert “significant”

--- Later in debate ---

[Baroness Hamwee]

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

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

[Baroness Williams of Trafford]

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

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

[Baroness Hamwee]

My Lords, I think I ought, after today, to consult my noble friend, who will know all about PACE, as I do not. Yes, of course, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Moved by

[Baroness Hamwee]

17: Clause 4, page 5, line 11, leave out from second “that” to “having” in line 14 and insert “the public interest in all or part of the electronic data specified or described in the application for the order being produced or, as the case may be, accessed outweighs the public interest in privacy,”

--- Later in debate ---

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

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

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

[Baroness Hamwee]

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

Amendment 17 withdrawn.

Windrush

Baroness Hamwee Excerpts

Tuesday 4th September 2018 Lords Chamber

[Baroness Williams of Trafford]

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

[Baroness Hamwee (LD)]

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

[Baroness Williams of Trafford]

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

Immigration Detention: Shaw Review

Baroness Hamwee Excerpts

Tuesday 24th July 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement. I cannot say that I have read the Shaw report. I was probably in a very similar situation to the Minister, in that I received it only an hour or so ago. Inevitably, that rather restricts what one can say about it. One thing that I have noticed is that, under the acknowledgements at the beginning and in the foreword by Stephen Shaw, there is a date: April 2018. Why is this report being brought to Parliament only in July 2018 and on the last day, effectively the last afternoon, before the Summer Recess? What exactly has been going on since then, if I am correct in thinking that he submitted his report in April 2018, which has prevented the report being published?

The report that we have—this second Stephen Shaw report into immigration detention—does not say that everything is right. It simply says that the situation is better than it was, which is a very different thing. The report is not quite the supportive document that the Statement seems to suggest. Let us look at one or two of the points made in the report.

Last year, it seems that 64% of those detained left detention within a month, and 91% left within four months. It depends on what one’s definition is, but detention was meant to be only for a short period of time, pending removal. Last year it was found that over half of those in immigration detention were released back into the community—a point made by Stephen Shaw in this report. So if more than half in immigration detention were released back into the community, why was their detention needed at all? The Government’s Statement says that,

“immigration detention is only for those for whom we are confident that other approaches to removal will not work”.

We are talking about large numbers of people who are detained and not removed but are released back into the community. A number of people seem to be detained who should not be, which is a point made by Stephen Shaw in this report.

Stephen Shaw comments on the issue of indefinite detention and time limits, saying:

“I have not directly considered the case for a time limit on detention”,


so we do not actually know what his view is on that issue. But he says in his foreword that,

“the number of people held for over six months has actually increased. The time that many people spend in detention remains deeply troubling”.

That is a point that I do not think was highlighted in the Government’s Statement on the report. Why has the number of people held for over six months increased? Do the Government agree with Stephen Shaw that the time that many people spend in detention remains deeply troubling?

Virtually all the population reduction in immigration detention has been on the male side, while the number of women in detention has fallen by a much smaller percentage. Yet there is a high level of vulnerability among women detainees—the very people one would have thought should not have been detained. Can the Minister say why that has happened?

The report deals at some length with the adults at risk policy. It was introduced by the Home Office and does not appear to be working properly in its objective of reducing the numbers of vulnerable people in detention. In his visits to immigration removal centres, Stephen Shaw found many people who he felt should not be there, and he comments in his report that,

“every one of the centre managers told me that they had seen no difference in the number of vulnerable detainees”,

and that in some cases the numbers had gone up. He also calls for,

“a more joined-up approach between the Home Office and its partners across Government”,

which, he says,

“applies particularly to the Ministry of Justice”.

In the section in the report on alternatives to detention, Stephen Shaw draws attention to some of the consequences of the policies restricting access to services that go under the umbrella of the hostile environment, which I believe has now been rebranded as the compliant environment. While he says in his foreword:

“Some of what I say in the pages that follow reflects very well upon the Home Office, the Department of Health and Social Care, and NHS England”,


he goes on to say that:

“I have found a gap between the laudable intentions of policymakers and actual practice on the ground”.


He also comments that,

“the Home Office’s strategy of expanding capacity by adding extra beds into existing rooms had exacerbated overcrowding and created unacceptable conditions”.

Why has the Home Office’s strategy led to the arising of that situation, upon which Mr Shaw has commented adversely? He repeats again in his report his concern that,

“more needs to be done to ensure that individuals who are at risk are not detained”.

I conclude by raising three questions for the Government in addition to those I have already asked. We are in a situation where the Chief Inspector of Prisons, the all-party parliamentary groups on migration and on refugees, the Bar Council, the British Medical Association and NGOs have all called for an end to indefinite detention. Do I take it from the Statement that the Government are still not prepared to commit to that objective? Perhaps the Minister could confirm that one way or the other.

I think I am also right in saying that the previous review called for an absolute exclusion on pregnant women in detention. But as I understand it, in 2017, 53 pregnant women were detained, almost all of them entirely unnecessarily, and were subsequently released into the community. If pregnant women are still being detained, will the Government commit now to an absolute exclusion of pregnant women and children from immigration detention? There is also currently no proactive screening process so that survivors of sexual and gender-based violence and others who are recognised as vulnerable under the adults at risk policy are identified before they are detained. Will the Government commit to introduce a proactive screening process to achieve this objective?

Finally, now that we have had the follow-up Shaw review, how will the Government ensure that the detention estate continues to be reviewed and assessed? I note that the Statement made reference to the review of the adults at risk policy, but there is more to it than simply that policy, vital and important though it is, so I ask that question once again—bearing in mind that the Shaw review has once again said that the situation is far from what it should be.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for repeating the Statement regarding adults at risk and vulnerable people in the detention system. I have always thought that it would take someone very resilient not to become at risk or vulnerable to the effects of detention once detained, however they started that process. That applies even to definite detention, and far more to indefinite detention, when the absence of hope is added to the other conditions experienced. I was grateful to the Minister’s colleague Caroline Nokes, the Immigration Minister, whom I met with the noble Lord, Lord Hylton, the other day, for confirming the Home Office’s aspiration of a humane system. I welcome the direction in which the Government are going on this.

I will mention again a report to which I have referred before in your Lordships’ House—the recent report by the Red Cross on the long-lasting impact on mental health of everyone surveilled after release from detention; in other words, release from physical detention is not the end of the experience.

There is always talk of numbers and percentages, which is helpful, but it is worth remembering that each person detained is an individual. The silver lining to the Windrush experience was that it rather confirmed that; that is certainly how they were seen by the public during the Windrush reports.

A number that I find shocking is the standard number of days to which the Home Office works in dealing with asylum claims. Also, if someone does not go when he is told to leave the country, he is automatically regarded as a flight risk, to the extent that even when he reports to the Home Office he is picked up from there and put into detention.

I am a member of the Joint Committee on Human Rights, which this morning announced a new inquiry into immigration detention, because human rights—particularly Article 5 of the convention—are engaged. The committee was planning this inquiry anyway, but the evidence that we heard in an inquiry into the Windrush generation’s experience particularly drew our attention to issues including access to legal advice, the possibility of challenge to detention and accountability.

Policy is always only a part of the story. Implementation and practice are the other very important side of the coin and, of course, that is very much what Stephen Shaw has focused on. He and Mary Bosworth deserve our thanks for all the work that has gone into this report. I have not been able to read this door-stopper yet—it is about half the size of the last door-stopper, but even so—but I will. It seems to me that the reasons for detention given in the Statement rather illustrate that detention is not, as we are so often told, treated as the last resort, although I believe that it should be the very last resort.

I want to pick up a number of points made by the Minister. She mentioned that the team of special detention gatekeepers has been set up—this is part of the recent history—but the gatekeeper process does not seem to have been working as well as planned. The Statement refers to ensuring that decisions to detain are reviewed. What about the initial decision? Should there not be investigations prior to detention to confirm that there are no indicators of vulnerability?

The Statement also refers to immigration bail, described as all being “good work”. Of course, it has been very welcome, but it has not been unfailing. The Minister will recall our exchanges about the problems that detainees have in accessing education. Importantly, it is clear that detainees do not all know that they can apply for bail at any time.

With regard to alternatives to detention, we have heard the organisations that the Home Office is going to work with, but can the Minister assure us that work will go on with other jurisdictions where there are very different practices and that the subject will be not just those whom the Home Office regards as vulnerable but much wider? Mr Shaw comments rather delicately that he is not certain that there has been significant investment in this since the first report.

I must leave time for the Minister to respond—

[Noble Lords]

Oh!

[Baroness Hamwee]

But I will go on for the moment.

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

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

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

[Baroness Williams of Trafford]

That sounds ominous —I am having my holiday.

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

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

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

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

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

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

ONS New Crime Statistics

Baroness Hamwee Excerpts

Friday 20th July 2018 Lords Chamber

[Baroness Hamwee (LD)]

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

[Baroness Williams of Trafford]

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

Registration of Marriage Bill [HL]

Baroness Hamwee Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 29th June 2018 Lords Chamber

[Lord Cormack (Con)]

My Lords, I congratulate the right reverend Prelate on being so specific and particular. In fact, he has been exemplary in the way he has sought to limit delegated powers. He has given a lesson to us all, on which he should be most warmly congratulated.

[Baroness Hamwee (LD)]

My Lords, I am afraid I was unable to speak at Second Reading. My noble friend Lady Scott of Needham Market is unable to be here. She takes a keen interest in matters genealogical and in registration. I am glad to have had the opportunity of the prompt to look at this. I congratulate the right reverend Prelate, as others have done.

The point I will raise is not to carp, but because I do not want to find that there has been a problem later on. I evidence that by saying that, when I came into this House I was asked, as we all are, by various directories to provide biographical details and I was asked for my father’s details, I said, “You can publish my father’s details if you publish my mother’s as well. It’s both or neither”.

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

Baroness Hamwee Excerpts

Wednesday 27th June 2018 Lords Chamber

Surely it is shaming that detention policies are causing harm to a group of people already so vulnerable because of the harm from which they have fled. Surely we have a responsibility to protect them from harm, not add to it. We have been warned by the organisations that work with torture survivors that these regulations will cause further harm, as the noble Lord, Lord Ramsbotham, said. That is why they should be withdrawn.

[Baroness Hamwee (LD)]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bringing this Motion forward. I start from the position that immigration detention does not do anybody any good. I find it hard to think that one would be liable to be harmed, whether one is vulnerable—a term I do not find easy—or not. Which of us would be robust enough?

In a previous debate, I quoted from Never Truly Free, a recent British Red Cross report on the humanitarian impact of the UK’s immigration detention system, including the mental health of detainees after release. It concluded:

“Immigration detention has a known negative impact on mental health. Most detainees will have experienced some form of trauma in their life before detention, the effects of which can be exacerbated in detention”.


It also stated:

“The damage done by detention does not simply go away once someone is released and the negative impact on mental health persists long after detention”.


I say this because I do not want to belittle, by implication, the experience of detainees who are not vulnerable—or at any rate, not “particularly vulnerable”, as per the phrase in Section 59—and to make the point that the definition of torture might be a little less difficult if we detained fewer people and for no longer than a maximum fixed period.

I have some sympathy with those who struggle with that definition, but this will always be a problem when you start from the wrong place and grapple with something that is not necessary. As has been asked, why is it necessary to distinguish torture from ill treatment for this purpose? The noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Lister, referred to Shaw—like Leveson, he must have got used to becoming a noun. It prompts me to ask whether he had any input in the content of these statutory instruments. Indeed, has he approved the definition?

As we have heard, we have been briefed by organisations with considerable experience of both working with victims of extreme cruelty and advancing the understanding of torture. They are very critical of the Government’s approach, both the detail and the principle. As we have also heard, the court did not require the Home Secretary to define the term.

What are we to make of the paragraph on “Consultation outcome” in the Explanatory Memorandum to the two instruments? It states that,

“the Home Office has discussed the proposal”—

that is, the definition—

“with interested non-governmental organisations (NGOs). The Home Office has considered comments made by NGOs and has committed to engaging with them as the detailed guidance and training for decision makers are developed”.

I was not aware that NGOs had the limited opportunity described to give their views to the Home Office, but those views are not reported in the memorandum. I take it that they were not accepted. As a matter of good practice, it seems to me that the memorandum should be much clearer on this.

My confidence in the process was not helped by the Explanatory Note to both instruments. It states:

“A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen”.


I do not know about a financial impact, but by definition there will be an impact on those undertaking Rule 35 assessments and on the numbers held in detention. There must be an impact. Medical practitioners have a difficult enough task in making assessments with time and other constraints and in a place and in circumstances which are far from the safe and supportive environment needed to work with such patients—I use the term deliberately—and which are likely to contribute to ongoing trauma, to exacerbate symptoms and to impede the healing process.

I am also interested in the concepts of control and powerlessness in the definition. At any rate, they certainly allow for the argument that a victim with a particular history of being controlled and powerless will experience detention as torture. With regard to that history, what is meant by powerlessness? The noble Lord has raised this point. Will the Minister confirm that the definition is not confined to a physical situation and that control and powerlessness may be different for different people?

Under the draft guidance, an individual is regarded as at risk—we discussed this at Questions the other day—if they are,

“particularly vulnerable to harm if placed or remaining in detention”.

Why is this in addition to the history? Why has it been added? In fact, as a matter of the construction of paragraph 7, is that something that the individual needs to declare, or is it an objective matter for the third party? I have read the paragraph several times and I am not sure.

I understand that the guidance introduces a wider range of immigration factors than before, placing far greater emphasis on non-compliance. My final question is: does this not of itself affect the balance, which we are told is sought, between,

“protecting the vulnerable and ensuring the maintenance of legitimate immigration control”?

That comes from paragraph 1, on the purpose of the guidance.

In summary, these Benches support the Motion. We share the noble Lord’s regret and our regret goes much wider, too.

[Lord Rosser (Lab)]

I add my thanks to the noble Lord, Lord Ramsbotham, for providing us with this opportunity to debate this issue of concern over the Government’s actions and decisions on the welfare of vulnerable people in immigration detention. We agree with the concerns that the noble Lord expressed about how the Government are dealing with this matter and his proposals for addressing the situation.

As I understand it, it is meant to be Home Office policy that vulnerable people, which includes the victims of torture, should be detained only in exceptional circumstances, for example, if they are likely to offend or cause a public safety risk. However, that does not always appear to be the case, because in the year ending last March there were apparently well over 26,000 exceptional circumstance cases in immigration detention. Once again, as I understand it, these are not even people whose removal is imminent, since about half are released back into the community.

In his first review, Stephen Shaw said that detention in and of itself undermines welfare and contributes to vulnerability. Half a dozen court cases in the last few years have drawn attention to the unacceptable treatment of detainees. I believe that the death rate among detainees in immigration detention has risen. Last year, 11 people died in custody.

The situation reached such a state that in 2015 the now Prime Minister, then Home Secretary, asked Stephen Shaw, the former Prisons and Probation Ombudsman, to conduct a review of the welfare of vulnerable persons in detention. His report concluded that the safeguards for vulnerable people were inadequate, that immigration detention was used too often and for too long, and that the impact on mental health increases the longer detention continues. However, in implementing their adults at risk policy, the Government did not fully address the concerns raised by Stephen Shaw. Indeed, the Government’s detention centre rules and guidance on the detention of vulnerable persons seemed to increase the risk of harm. In its first 10 weeks of implementation, the Government’s adults at risk policy was applied incorrectly in almost 60% of 340 cases. Torture survivors continue to be detained and torture is one of the 10 indicators of risk in the adults at risk policy.

The guidance on the detention of vulnerable persons increases the burden of providing evidence on the vulnerable individual, since specific evidence will be needed that detention is likely to cause harm and the risk of harm in detention has to outweigh a range of immigration factors, such as the risk of absconding. In effect, it requires a person to prove that they will not abscond, which one would have thought was extremely difficult to do. The guidance already includes a broad range of immigration factors that can justify detention, even of torture survivors.

The result has been that the release rate, following a report designed to screen torture victims out of detention, has fallen considerably. In the third quarter of 2016, before the policy change, nearly 40% of those in the report in question were released. In the first quarter of 2018 that number had fallen to just 12.5%. Those figures were borne out in a 2017 High Court ruling in a case brought against the Home Office that the adults at risk policy unlawfully imprisons through immigration detention hundreds of victims of torture. The Home Office had previously decided to narrow the definition of torture so that it refers only to violence carried out by state actors. Apparently, it now excludes vulnerable survivors of non-state abuse, such as by ISIS, Hezbollah or the Taliban.

The Government have tabled the two statutory instruments we are discussing in response to the High Court’s ruling. However, the organisation that brought the successful case against the Home Office has said that the new torture definition is inappropriate and too complex for caseworkers and doctors to apply to specific cases, and that even when applied correctly the definition will exclude a group of victims of severe ill treatment who do not fall within the other indicators of risk.

As I understand it, the Government were actually asked by NGOs to await the publication of Stephen Shaw’s re-review into the welfare of vulnerable people in detention to allow consideration of his findings before laying changes before Parliament. The Government have now had the Shaw re-review for some two months, but others have not been given a chance to consider his latest recommendations since, subject to the Minister saying otherwise, it has not been made available by the Government.

The Government’s argument for not allowing consideration to be given first to the findings of Stephen Shaw’s re-review appears to be that they could be in difficulty if they have not produced a revised adults at risk policy within 12 months of the October 2017 High Court judgment. But did the judgment specifically say that, and did it say that the Government should not await the outcome of any re-review before revising their adults at risk policy? The Government have had the Shaw re-review for two months. There is nearly a further four weeks to go before the Summer Recess, without taking account of the two-week short sitting in September. If this Government want to speed up processes, they have previously shown that they can do so. They could have, and still can, in this case and ensure that there is an opportunity to consider these two statutory instruments while they are still drafts in the light of the findings of Stephen Shaw’s re-review. Doing so might avoid the Government having another uncomfortable day in court.

--- Later in debate ---

[Baroness Lister of Burtersett]

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

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

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

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

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

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