Domestic Abuse Bill

Baroness Hamwee Excerpts

Monday 9th March 2020 Lords Chamber

[Baroness Williams of Trafford]

I think the one way the new Bill differs from the original Bill is that it introduces a statutory duty on tier 1 local authorities in England to provide support for victims of domestic abuse and their children in safe accommodation. The other thing that might help the right reverend Prelate is that statutory guidance will also reflect the effect on children.

[Baroness Hamwee (LD)]

My Lords, while I welcome the Bill, which was well overdue even before it was delayed by events, can the Minister tell the House when she anticipates that, assuming its smooth passage through Parliament, it will actually come into force?

[Baroness Williams of Trafford]

All things being equal, it should be in force this time next year.

Extradition Act 2003 (Amendments to Designations) Order 2020

Baroness Hamwee Excerpts

Monday 9th March 2020 Grand Committee

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

My Lords, this order is essential for the UK to fulfil its obligations under several treaties. It is required to implement an extradition agreement between the EU and Norway and Iceland to which the UK is party during the transition period, and to implement bilateral extradition treaties with Kuwait and Morocco. I shall explain in a little more detail why these changes are being brought at this time and the effect that they will have on our extradition arrangements.

First, the first part of this order will replace the designation of Norway and Iceland as category 2 territories, currently based on the European Convention on Extradition. It makes it clear that Norway and Iceland become territories designated under category 1 of the Extradition Act, based on the surrender agreement between the EU and Norway and Iceland, which entered into force on 1 November 2019. The agreement will facilitate the exchange of warrants between judicial authorities, which is executed through a simplified decision-making system.

In short, this will mean that Norway and Iceland will be treated in a similar way to EU countries for the purposes of extradition. However, there are some differences. Notably, parties can refuse to extradite their own nationals and can refuse extradition on the basis that the offence concerned is “political”. This agreement also allows parties to require that an extradition take place only where the offence concerned is a criminal offence in both countries—something known as “dual criminality”.

As the Committee is aware, during the transition period, the EU justice and home affairs tools that the UK has opted into, including this agreement, will continue to apply. The legislation will ensure that there is no disparity between our international obligations and domestic law, which could result in legal uncertainty and impunity for wanted fugitives.

The second part of this order will implement the extradition treaties concluded between the UK and Morocco in 2013 and the UK and Kuwait in 2016. The designation of these countries under category 2 of the 2003 Act will allow the UK to process extradition requests from Kuwait and Morocco in line with the obligations of these treaties. Both treaties set out a timeframe in which a full extradition request must be provided to the UK by Kuwait and Morocco when an individual has been arrested on a provisional arrest warrant.

This order therefore also ensures that this is reflected in our legislation by setting out that, in the case of Kuwait and Morocco, the judge must receive the papers within 65 days of the person’s provisional arrest, in line with standard practice. This allows for the countries to provide the request to the Secretary of State within 60 days, as the treaty provides for, and for the Secretary of State to have five days to certify the request and send it to the appropriate judge.

Once the designations have been made, the Kuwait and Morocco treaties will be ratified. The introduction of the formal bilateral basis for extradition for conduct covered by these treaties will lead to a more efficient and effective process for extradition between the UK and the respective countries. Morocco and Kuwait are important partners for the UK, and these treaties will enhance our ability to work in close co-operation with them on important issues.

I urge the Committee to consider the amendments made by this statutory instrument favourably to ensure that the United Kingdom can comply with its obligations under the relevant international extradition arrangements. When considering any request for extradition, our arrangements are balanced by the provisions in the Extradition Act 2003, which serve to protect an individual’s rights, including their human rights, where extradition is not compatible with our law.

Extradition is a valuable tool in combating cross-border crime, and offenders should not be able to escape justice simply by crossing international borders. No one should be beyond the reach of the law. Having efficient, clear and effective extradition arrangements is vital for safeguarding our security and preventing fugitives escaping justice. I commend the regulations to the Committee and beg to move.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for explaining the order. Kuwait and Morocco both still carry the death penalty; according to Human Rights Watch, there were seven executions in Kuwait in 2017, and I understand that it outlaws same-sex relations. Does the Minister have any information about seeking assurances in the past from these countries? She says that they are important partners, but are they trusted partners—as regards their judicial system or how politically expedient their approach to these matters sometimes is?

Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

Baroness Hamwee Excerpts

Monday 9th March 2020 Grand Committee

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

My Lords, these regulations are introduced under the powers in Section 11 of the European Union (Withdrawal Agreement) Act 2020. They provide an important right of appeal against immigration decisions on citizens’ rights. The regulations are required to meet our obligations under the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement.

The Government have been clear in our commitment to protect the rights of EU, other EEA and Swiss citizens who have made this country their home. They are our friends, our family and our neighbours, and we want them to stay.

The EU settlement scheme makes it easy for EU citizens and their family members who want to stay in the UK to get the immigration status they need. As announced last month, we have already had more than 3.2 million applications, with nearly 2.9 million people granted status. If an applicant disagrees with the decision in their case, they can apply again to the scheme completely free of charge and they have until 30 June 2021 to do so. They can also apply for an administrative review, meaning that their case is reviewed again by Home Office caseworkers, if they are refused on eligibility grounds or granted pre-settled status rather than settled status. The fee for this service, which is £80, will be refunded if the original decision is withdrawn due to a caseworker error. These appeal rights provide further reassurance to EU citizens that they remain welcome and can continue to live and work in the UK and that we will uphold our commitment to guarantee the rights of EU citizens.

The regulations basically do two things. First, they establish appeal rights against a wide range of decisions affecting a person’s right to enter and live in the UK under the EU settlement scheme. This includes those refused leave under the scheme or those granted pre-settled status rather than settled status. It also includes those refused entry clearance in the form of an EU settlement scheme family permit or travel permit. The regulations provide an appeal route for those whose rights under the scheme are restricted; for example, where their status is revoked or curtailed.

Secondly, the regulations ensure that existing rules and procedures are applied to the operation of appeal rights. They go further than required under the agreements by providing appeal rights in line with the UK’s more generous domestic implementation. This means that anyone who can make an application under the scheme, including non-EU family members, will have a right of appeal if refused or granted pre-settled status.

Appeals under the regulations will follow the same process as current immigration appeals. They will be heard by the immigration and asylum chamber of the First-tier Tribunal. With permission, there will be a further onward right of appeal to the Upper Tribunal on points of law. The exception is where the decision is certified on national security grounds or where sensitive information cannot be made public. As with current immigration appeals, these cases will be referred to the Special Immigration Appeals Commission.

The regulations are undeniably complex. This is because of the number of situations requiring a right of appeal under the agreements. There is also a need to apply existing rules relating to appeal rights, which are themselves complex.

However, we are committed to making the appeals process as simple as possible for applicants. The decision letter will tell them whether they can appeal and will direct them to the relevant information on GOV.UK. There is also support available by phone, in person or in writing for those who do not have access to online facilities or who need additional assistance.

These regulations ensure that we comply with the requirements of the agreements and are an essential part of our commitment to protecting the rights of EU citizens. I commend them to the Committee. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister. She mentioned administrative review. I want to take this opportunity to ask her about the experience so far. I came across a blog, although I cannot remember whose. I think it was a barrister’s. It seems to have become the custom for members of the Bar—I am very glad of it—to blog as their way of advertising their services. I will probably get some complaints, having said that. This blog said that, following a freedom of information request, the inquirer found that 89.5% of applications that had gone for administrative review were successful.

The noble Baroness mentioned refunds. Does she know how much has had to be refunded, what the associated costs of doing so might be and whether the Home Office has a view about why this is happening with so much success at that stage?

Since the order came into force on 31 January, when will time start running in the case of decisions made before today or before the matter goes to the House—in other words, before the SI is approved?

I confess to having some concern about Regulation 14, which allows for an appeal from outside the United Kingdom. Will it not be the case that many appellants will have been required to leave? Concerns have been expressed in other parts of the immigration forest about the difficulties of appealing from abroad.

Am I right in thinking that this SI will be the basis for any claim with regard to invalidity—for instance, if the Home Office has said that the applicant is not an EU citizen and is therefore not in the settled status scheme?

Given the number of grants of pre-settled status that have been made, has the Home Office made any assessment of the numbers of appeals against that status from people who think that they should have been granted full settled status? It seems to me that there could be an early and considerable spike in the work.

The Minister mentioned the considerable help currently available from a number of organisations that have received grants to assist applicants for settled status. The EU Select Committee—it may have been the EU Justice Sub-Committee—heard from some of the organisations a couple of weeks ago. At that stage, they were waiting to hear whether their funding would continue after the end of this month. If she has any news on that, the Committee—and, even more so, the organisations concerned—would be glad to hear it.

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

My Lords, I thank the noble Baroness, Lady Williams of Trafford, for explaining the regulations to the Grand Committee this afternoon. The noble Baroness, Lady Hamwee, raised all the points I was going to raise—

[Baroness Hamwee]

Sorry about that—

[Lord Kennedy of Southwark]

It is absolutely fine. I shall not repeat them because it would detain the Committee longer than necessary, but the noble Baroness has raised some very important points. I support the regulations and we are pleased they are here, but our concern and worry is that the people who are vulnerable are those who have not picked up on the need to use this system. If they do not use it, they will find themselves, in June 2021, to be in the UK illegally, even if they have been here for many years. That is what we are worried about.

The other point of concern is that there have been a few issues in the Home Office in terms of appeals and other problems in the past. We are very worried that someone might find themselves in difficulty, so what we are looking for from the Minister is some reassurance about that and about how people will be treated. What will the Government do to ensure that people know they need to apply for this? It may well be that some of those people who are here from elsewhere in Europe are in quite low-paid jobs, do not have a lot of money and are just not picking up on it. What we do not want is a situation where people do not understand that they need to apply and find themselves in difficulty with the authorities and potentially being removed from this country when, had they applied, they would have been given the right to stay here. That is the reassurance every noble Lord here is looking for. In principle, I am very happy with there now being a right to appeal, so I will leave it there.

[Baroness Williams of Trafford]

My Lords, I thank both noble Lords for their points. I thought this would be the easy SI and that every noble Lord would be so happy with the appeal processes. The noble Baroness, Lady Hamwee, asked why so many appeals are successful. An appeal may succeed where new information is provided.

[Baroness Hamwee]

Does the Minister mean an administrative review?

[Baroness Williams of Trafford]

I apologise. I meant that an administrative review may succeed when new information is provided. I understand that about 900 applications for the admin review have been received. The noble Baroness asked when it starts—I am assuming 31 January.

On what happens if people miss the deadline, we have been very clear that where there are reasonable grounds for missing the deadline people will be given a further opportunity to apply.

[Baroness Hamwee]

I am sorry; I did not think I had asked terribly difficult questions. On my question about the time running, there are time limits for appeals, but we have gone beyond the point when the SI is effective because that date is 31 January. I am not clear whether the time from 31 January to now is taken off the time available to an appellant to get the appeal in. This is quite a practical point. I will go on rambling so that the Minister can talk to her officials and is able to get this on to the record as I think that would be helpful. Perhaps I was clear in my question.

[Baroness Williams of Trafford]

We have some clarity now. It will run—is the noble Baroness asking me how long it will run for?

[Baroness Hamwee]

No. I am asking whether the period between 31 January and whatever the date is in March counts for the period towards the number of days within which an appeal has to be lodged because the order is in force but people will presumably will not be making applications under it until has gone through the parliamentary process.

[Baroness Williams of Trafford]

They are already doing it.

[Baroness Hamwee]

I wonder why we are here.

[Baroness Williams of Trafford]

On pre-settled status appeals, there are 900 applications for administrative review, but whether they are for pre-settled status I do not know. If I have the figures, I will provide the noble Baroness with them. On her question about immigration control, this is not for the purposes of immigration control. I thought the noble Baroness might be concerned about that. The funding for the groups that are helping runs through the financial year.

[Baroness Hamwee]

I am sorry for treating this as a conversation, but I understand that their funding goes to the 31st of this month, but they need to know, if they do not know already, whether they will be able to employ people to continue the service.

[Lord Kennedy of Southwark]

I understand that when this came up in the Commons the Minister said the thing should be resolved in a couple of weeks. That was a week ago.

[Baroness Williams of Trafford]

That is because we will be announcing the arrangements for the financial year 2020-21 shortly—in the Budget, I am guessing. I hope that rather clumsily answers the noble Baroness’s questions.

[Baroness Hamwee]

I wish to make it clear from these Benches that we do not think that is satisfactory. We understand about financial years and so on, but for a small organisation, or a medium-sized or quite large organisation, which does not know whether it will be able to continue the service it is pretty difficult that it will be within a couple of weeks of the end of the year.

[Baroness Williams of Trafford]

I totally understand that point. It is frustrating for any group or organisation waiting for future funding announcements to be in this position right at the end of the financial year; I really get that. I just want to answer the last point made by the noble Lord, Lord Kennedy, on vulnerable people. As he knows, we have set out some funding for organisations who will help vulnerable people. I think they are the last cohort of people on whom our attention will need to focus: as he says, people who do not even know that they must apply. That work is well under way across the country and, given the number of applicants, which is 3.2 million, it is clearly going well for most people, but he is right to raise that final cohort.

Extradition (Provisional Arrest) Bill [HL]

Baroness Hamwee Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Thursday 5th March 2020 Grand Committee

[Baroness Hamwee (LD)]

My Lords, red notices are indeed controversial because they are open to abuse by authoritarian regimes seeking the apprehension of dissidents or “criminals” whose crime is dissidence. The House has talked about abuse in the cases of Russia, China, Turkey and a number of other countries. I understand that there are also sometimes queries about red notices from Latin American and Middle Eastern states. Of course there is a risk of political abuse, corruption and malicious notices.

I had forgotten, but recalled when I was preparing for today, the case of the footballer granted refugee status and residence in Australia three years ago, after fleeing Bahrain. He was arrested on his honeymoon in Thailand and held in detention for a while until he got back to Australia. Questions were raised about Interpol’s neutrality. I appreciate that reforms have been introduced over the past five or so years, but controversies do and will continue over red notices and Interpol’s diffusions, which serve as an international alert mechanism.

It is important to have as much transparency and availability of information as possible on how the recipient of the notice treats its subject, which is why the involvement of the judiciary at a later stage has such importance, and on how the NCA or any other designated authority triages the information—we seem to have adopted that term.

The fact that there is a risk of abuse seems no reason not to proceed with the legislation and I acknowledge that the amendment does not propose that. In any event, I understand that the certificate, not the red notice, is the basis for arrest, which is an important distinction.

I wonder whether this is the moment to ask the Minister about the EU’s future relationship with other European countries. The document published last week on the future relationship refers to achieving extradition arrangements with

“appropriate further safeguards for individuals beyond those in the European Arrest Warrant.”

I am sorry that I did not think to warn the Minister that I would ask this, but I imagine that it is pretty much at the top of everybody’s minds. What are the “appropriate further safeguards”? In other words, what are the problems with European arrest warrants that led to that statement in the document?

I am a member of your Lordships’ EU Select Committee. We took evidence on Tuesday about the future relationship. I asked an academic who was giving evidence what he thought this was about. He said that it was probably about human rights concerns. Of course, the noble Baroness will understand that I will not object to human rights safeguards.

On the noble Lord’s second amendment, as I have said, transparency is important. However, I was not aware that there was a major concern about discrimination, which is what is protected—as it were—by the protected characteristics. One would perhaps want to know the situation in other countries. I thank him for raising the issues and giving us the chance to discuss these subjects.

[Lord Inglewood (Non-Afl)]

My Lords, if I may, I shall raise one small point. We are talking here about the ability to effect an arrest, not an obligation on the person who discovers and identifies somebody who is suspicious and to be arrested. To clarify, if it against public policy for somebody to be extradited, there is no obligation on the person concerned who has been granted this power to carry out the arrest. Is that correct?

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Moved by

[Baroness Hamwee]

3: The Schedule, page 2, leave out lines 17 to 19
Member’s explanatory statement
This amendment precludes the period of imprisonment extending beyond 24 hours before the person is brought before a judge.

[Baroness Hamwee]

My Lords, I tabled this amendment following the speech of the noble and learned Baroness, Lady Clark of Calton, at Second Reading. She raised the issue of the time that a suspect—the person who has been arrested—might spend in custody before coming before the court. Someone arrested on the Friday before a bank holiday weekend might not go before the court until the Tuesday, if one excludes weekends and bank holidays. The impact assessment tells us that the legislation is likely to involve only half a dozen people, so without wanting to impose too much on our judiciary—I accept that it is pretty hard pressed these days—I do not see that it would be too much of an extra strain on them or on the police to deal with these matters over the weekend.

I am grateful to the Minister for calling me just before we started the Committee stage to say that, basically, I had got the drafting wrong. Okay, this is what Committee stages are about: to raise issues and to see how we can deal with them. The schedule provides that in calculating the 24-hour period before a person is brought before a judge, no account is taken of weekends, bank holidays and so on. Reference is made to provision elsewhere. I understand that the noble Lord, Lord Parkinson, will deal with this matter. I look forward to him explaining this to me because I believe the argument is that that would mean that no one could be arrested on a Saturday or a Sunday. I am not quite sure that I follow that, but no doubt he will put that right.

When the noble and learned Baroness, Lady Clark, spoke at Second Reading on 4 February, she asked, at col. 1743, for some statistics on the number of arrests. I thought I should check on whether those have been made available. It may be that the matter was not pursued, the Minister having spoken to her. But as she said then, if there is a problem in relation to extradition to category 2 territories, the solution might be better co-ordination between the police and the judiciary to enable a warrant to be obtained at an early stage, or the involvement of the judiciary in a screening process instead of the designated authority. This is a useful opportunity for us to consider these points and I beg to move.

[Lord Kennedy of Southwark]

I rise briefly to welcome the noble Lord, Lord Parkinson of Whitley Bay. If he will now be covering some Home Office matters, we will be spending a lot of time together and will get know each other well, so that will be welcome.

The amendment moved by the noble Baroness, Lady Hamwee, is very sensible and I am happy to support it. She set out the issue clearly: someone can be picked up on the Friday before a bank holiday weekend and potentially wait until the Tuesday morning before being brought before a judge. That is a fair point. If people are arrested, they should be brought before a judge quickly, so I look forward to the noble Lord’s response.

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[Lord Parkinson of Whitley Bay]

I thank noble Lords for their forbearance on this, my first outing. It is our intention to replicate the existing provisions under the Extradition Act. It may be helpful for me to speak to the noble and learned Lord and others in greater detail about the statutory intention of what the Government propose. We seek to mirror the provisions already there, which are caught up in the usual formulation of “as soon as practicable” that already exists in the Extradition Act. There are precedents for these arrangements for provisional arrest under Part 1, under which a person may be provisionally arrested without warrant and brought before the appropriate judge within 48 hours of their arrest, subject to exactly the same conditions as set out in the schedule under discussion here.

My noble friend Lady Williams of Trafford has already cited the letter sent by the Director of Public Prosecutions to the Security Minister earlier this week, which welcomes the way the Bill, as drafted, will avoid unnecessary delay and ensure initial judicial scrutiny as early as possible, before the case proceeds through extradition proceedings in the usual way. It is for that reason that the Government are not persuaded that the amendment is needed. I hope that gives some reassurance to the noble and learned Lord, the noble Baroness and others.

[Baroness Hamwee]

My Lords, I did not expect it to go in this direction, but I thank the noble Lord for his explanation. I am left a bit thrown and not entirely satisfied. I decided that I would not bring my iPad into Committee to scroll up and down through the 2003 Act; I reckoned it could wait until later, but clearly I should do so.

If this provision is to mirror the 2003 Act, which talks about bringing someone before a court as soon as practicable and in any event within 48 hours, that still does not meet the provisions of new Section 74A(4) because, as I said, if someone is picked up on a Friday afternoon, 48 hours lands them on a Sunday. There is an important point of principle in this: the way it operates—the noble Lord used the term “workability”—in terms of the position of the Executive and the work it has to do with the police and the rights of the individual who is the subject of this. That is why the judiciary is involved: to ensure that that person’s rights are properly protected. It looks as if the noble and learned Lord, Lord Mackay, wants to intervene.

[Lord Mackay of Clashfern]

I shall wait until the noble Baroness has finished.

[Baroness Hamwee]

I think I pretty much have finished.

[Lord Mackay of Clashfern]

I think the position is that, as times have changed and we are more modern than we once were, a judge is now available at all times to deal with this matter. Therefore, it is not necessary to leave out weekends or bank holidays because the reason that was put in was that the judge might not be there. Now, under the rules of the system, the person can have his case before the judge in the holidays because a judge is always there. Therefore, it needs to be changed to take account of that. That is my understanding. I hope the noble and learned Lord, Lord Judge, agrees with me.

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[Baroness Hamwee]

As my noble friend Lord Paddick says, this is what Committee is about. He has reminded me that some courts are open on a Saturday to deal with custody cases, which adds another dimension to this. I look forward to discussing this to get the right balance, which is what we always seek. I thank the noble Lord, Lord Parkinson. I am sorry that, as the noble and learned Lord, Lord Judge, said, we have been bowling him googlies on his first outing. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Moved by

[Baroness Hamwee]

4: The Schedule, page 3, line 9, at end insert “and
(e) it is satisfied that the request is not politically motivated.”Member’s explanatory statement
This amendment is to probe the propriety of requests, and whether paragraph (d) provides adequate protection.

[Baroness Hamwee]

My Lords, I beg leave to move Amendment 4 and will speak to my Amendments 11, 11A and 11C.

Amendment 4 would insert into the criteria for a certificate under new Section 74B that the designated authority is

“satisfied that the request is not politically motivated.”

This takes us back to our first debate and is intended to probe how the propriety of requests is dealt with. We already have new Section 74B(1)(d), which says that the authority

“is satisfied that the seriousness of the conduct constituting the offence makes it appropriate to issue the certificate.”

I am not sure quite what that paragraph means. What is “appropriate”? It may go only to the offence for which the possible sentence meets the threshold. What is the seriousness of conduct constituting the offence? How does one assess the conduct as distinct from the offence as it is legally defined in the country in question? I am quite prepared for the Minister to tell me that this is in the 2003 Act and that there is case law on it. I will wait and see.

Amendment 11 would amend new Section 74C, which concerns the validity of requests, including from the requesting authority. The designated authority —in our case, the NCA—must believe that the authority in the other state has the function of making these requests. As my explanatory statement says:

“The amendment is to probe whether the designated authority should rely on a request if there is any doubt as to whether the requesting authority has this function,”.


The word “believes” made me hesitate over this provision.

Amendment 11A would provide that, where someone has been discharged, the person should not be arrested again in reliance on the same certificate. There should be a further certificate. I am not sure that we have the amendment in quite the right place. However, it seemed worth raising the issues of concern to the organisation Justice, which has been following—and, in some cases, leading us on—the proceedings on the Bill. It is concerned about it being quite wrong for there to be a new power in respect of the same extradition request should the designated authority issue a fresh certificate. Justice understands that the Government do not intend for fresh certificates to be issued where the first has been produced incorrectly and that this would be a matter for judicial scrutiny. I am again grateful to the Minister for having a word with me about this. I hope she will put on record what I know to be the Government’s position on this.

Amendment 11C would provide for

“the affirmative procedure for regulations to designate the ‘designated authority’.”

We have been told that the designated authority will be the National Crime Agency, although it is not specified in the Bill. Given that reorganisations in the police service are not that unusual, I understand why one might need the opportunity to change the reference. There is clearly concern about ensuring that a future designated authority has the requisite expertise, as there is in the service at the moment. It would therefore be appropriate to use that procedure. I beg to move.

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[Baroness Williams of Trafford]

I thank the noble Lord, Lord Kennedy, and the noble Baroness, Lady Hamwee, for their points on these amendments. They have been grouped together as dealing with the functions of the designated authority and the criteria applied by it in certifying requests.

Amendment 4 proposes a new criterion for certification. This would require the designated authority to be satisfied that the request is not politically motivated. Making consideration of political motivation a precondition of certification for the designated authority would reverse the present position for arrests under the Extradition Act 2003. Presently, the courts are required to consider during the substantive extradition hearing whether any of the statutory bars to extradition apply. These statutory bars include whether the request for extradition is made for the purpose of prosecuting or punishing an individual on account of their political opinions—that comes under Section 81 of the Extradition Act 2003. The Government’s position remains that it is right that the judge considers these points based on all the evidence before him or her during the substantive hearing and not the NCA prior to arrest. It is the judge who is ultimately accountable.

Furthermore, we are all aware that the Extradition Act contains substantial safeguards in respect of requests motivated by reason of the requested person’s political views. These safeguards will continue to apply, and we fully expect the courts to continue to exercise their powers of scrutiny as usual.

Arguments of political motivation are of course not usually simple. It is right that the question of whether an individual extradition request can be described as politically motivated should be assessed by a judge before an open court. It is vital, of course, that the requested person should be able to put their arguments on this basis to a judge, but it is also crucial, in the fulfilment of our obligations under the international arrangements on extradition that give rise to such proceedings, that the requesting authority should be able to respond to such arguments and put their own case as to why the request is not politically motivated. This should be openly and fairly arbitrated, so importing this consideration into the process for determining whether an individual may be arrested would be at odds with existing extradition law. Noble Lords will be aware that judges and justices of the peace are not required to consider such factors when deciding whether to issue an arrest warrant under Section 71 or Section 73 of the 2003 Act.

Were the designated authority to make such a deliberation in effectively, it would need to be able to invite representations on the point from both the requesting authority and the requested person in each case before certification. Not only would this be hugely resource-intensive, it would also advertise to the wanted person that they are wanted. I should note that the designated authority, as a public body, would already be under an obligation to act compatibly with convention rights under Section 6 of the Human Rights Act 1998. At the point of certification, this will include consideration of whether an arrest is ECHR-compatible.

I bring the attention of noble Lords to the types of territories proposed as appropriate specified territories. These are democracies whose criminal justice systems are rooted in the rule of law. I am certain Parliament would not accept the addition to the schedule of territories that we believed would send the UK politically motivated arrest requests. I hope I have been able to persuade the noble Baroness that there is no gap in safeguards here and that, consequently, she will be content with withdraw her amendment.

She also asked what is meant by the “seriousness of the conduct”. The language mirrors the test in Part 1 of the Extradition Act 2003. As she thought, there is indeed case law on the point. The intention is to capture only conduct sufficiently serious to ensure that the power is used only where proportionate. For example, the minor theft of an item of food from a supermarket or a very small amount of money is unlikely, without exceptional circumstances, to be sufficiently serious. Only when the designated authority decides that the offence satisfies the test will it be able to certify the request.

I turn now to Amendment 5, which seeks to define the designated authority as the National Crime Agency in the Bill. Our approach here mirrors that of the designation of the authority responsible for certification of European arrest warrants under Part 1 of the Act. The Government consider that the designation of the authority responsible for issuing a certificate is an appropriate matter to be left to secondary legislation. A regulation-making power affords the appropriate degree of flexibility to amend the designated authority in light of changing circumstances, including alterations to the functions of law enforcement bodies in the UK. To future-proof the legislation, the Government believe that the current drafting leaves an appropriate amount of flexibility. As I said, the Government’s intention is initially to designate the NCA, which is the UK’s national central bureau for Interpol, as the designated authority. I hope I have persuaded the noble Lord that we have got the balance right and that he will be content not to press his amendment.

I turn finally to Amendment 11, on requests made in the “approved way”. My noble friend’s amendment suggests that a request should be considered to have been made in the approved way only if it is made by an authority that has the function of making such requests in the territory concerned, rather than an authority which the designated authority believes to have this function.

Perhaps I may momentarily be a bit philosophical. The amendment attempts to base the assessment of the authority’s function on an objective truth. That is admirable from the point of view of legal certainty, but the designated authority does not have a monopoly on truth. The best it could do in practice, when making the assessment described in the amendment, would be to decide, to the best of its ability, whether the authority in question has the function of making such requests, arriving at what I think we would characterise as being a belief that it does so. Of course, the designated authority, as a public body, must take decisions that are reasonable and rational.

As such, we expect there to be no difference between how the assessment would be made in practice under the amendment and how it would be made under the existing text. The benefit of the text, as we have proposed it, is that it mirrors language elsewhere in the Extradition Act—for example, when the designated authority under Part 1 may issue a certificate in relation to a warrant and when the Secretary of State may issue a certificate under Part 2.

On the perceived risk implicit in Amendment 11A—that an arrested person could be rearrested for the same thing, having been discharged by a court, perhaps because they were not produced at court on time or for some other failing—I reassure the Committee that this is neither the intention nor the effect of the new sections in the Bill. New Section 74A(8) makes clear that an arrested person may

“not be arrested again in reliance of the same certificate”

if they have previously been discharged. The intention of this drafting is to stipulate that an individual may not be arrested again on the basis of the same international arrest request once a judge has discharged them. This mirrors Section 6 of the Extradition Act 2003, which provides for the same thing, where a person provisionally arrested on the basis of a belief relating to a European arrest warrant may not be arrested again on the basis of a belief relating to the same European arrest warrant.

On top of that, new Section 74B(3) requires that a certificate has to have been withdrawn before any arrest takes place to allow a new one to be issued relating to the same request. This again illustrates that a further certificate cannot simply be issued on the basis of the same request once an individual arrested under this power has been discharged by a judge.

Of course, it is vital that a certificate can be issued on the basis of a new request, or on the basis of a wholly different request, so that an individual wanted for another crime is not immune to any further arrest because they were once arrested and discharged for a different crime. Organised transnational offences, such as people trafficking, often involve offences in different countries, on different dates, with different victims, and no individual should be able to avoid answering for more than one serious crime using a legal loophole. The amendment would create that impunity. For that reason, I hope I have been able to persuade the noble Baroness and that she will be happy not to press that amendment.

Amendment 11C would require an affirmative resolution procedure to apply to any statutory instrument that designates an authority as a “designated authority”. Given that the framework and criteria for the issuing of a certificate are provided for in the Bill, we consider that the negative resolution procedure affords an appropriate level of parliamentary scrutiny. We have plainly set out what the designated authority will do and how they must do it. Which particular body exercises that function is not, in our view, a matter that needs to be subject to debate in both Houses. The use of the power to designate an authority is necessary to accommodate any changing circumstances, including alterations to the functions of law enforcement bodies in the UK, and we consider it appropriate that we can respond to this promptly. The application of the negative procedure is also, again, completely consistent with the procedure for designating an authority for the purposes of issuing a certificate in respect of a European arrest warrant under Part 1 of the Extradition Act 2003.

I am sorry for my long-winded response to these several amendments. I hope the noble Baroness and the noble Lord are happy not to press their amendments.

[Baroness Hamwee]

I do not think the Minister was long-winded; it is quite a long group of amendments. I am grateful to her for that. I should have brought my iPad so that I could have followed all the references to the 2003 Act. I take all the points that the Minister made—in particular, the point about organised crime. One does not always remember how the nature of crime changes. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

6: The Schedule, page 3, line 34, leave out “, vary”
Member’s explanatory statement
This amendment is to probe the variation of a reference to a territory, as distinct from an addition or removal.

[Baroness Hamwee]

My Lords, I beg to move Amendment 6; I also have Amendments 7, 9 and 10 in this group. I start with Amendment 9, which I think is the most important. This amendment would restrict additions to Schedule A1 to one territory at a time. Orders are not amendable; one says either yes or no—and it is rarely no—to the whole thing. Let us consider an order seeking to add, say, Turkey and the Netherlands—it might not happen but I am thinking of two very different states—where one might want more protections than are proposed by the Government, but one would not want to reject an order to add the Netherlands. I think that is a sufficiently stark pairing to enable your Lordships to understand why I am concerned about this. I have written myself a note about the delegated powers memorandum. I cannot now find it but I am sure that it said something quite relevant. I might be able to find it by the end of the debate. Anyway, that is my particular concern. I do not think that I need to expand on it any further. I am grateful to the noble Lord and the noble and learned Lord for adding their names to this.

Amendment 6 is to probe how a territory can be varied, as distinct to being added or removed. It did not seem to me that one could vary a territory to make it part of a state. If it is about a change of name—some states do change their names—surely legislation here is not necessary. Amendment 7 is to take out the provision in new Section 74B of the Act that regulations can amend new Section 74C consequential on the addition, variation or removal of reference to a territory. New Section 74C is about the validity of requests for an arrest, which have to be made in an approved way; so, again, I am probing. What could be amended other than that the request comes from an authority with the requisite function? I table this because I am uncomfortable that there might be regulations in contemplation that widen the category of authorities entitled to make the request.

Amendment 10 would deal with the basis on which the Secretary of State may add a territory. The Minister at Second Reading said that we would apply the provisions only to

“alerts from countries that do not abuse Interpol systems, that respect the international rules-based system and that have criminal justice systems we trust; and only to alerts relating to sufficiently serious offences.”—[Official Report, 4/2/20; Col. 1727.]

I do not quarrel with a word of that. This amendment seeks to transfer those words into the legislation. I beg to move Amendment 6.

[Lord Deben]

My Lords, I very much support this Bill. My Amendment 11B relates to the names of territories that were not in the original legislation but are in this Bill. My noble friend perfectly reasonably suggested that I might be objecting to our extradition system in general and that that would not be suitable. I agree with her. However, this Bill has a list of “trusted partner” countries. That is true of all but one of them. All the others have a system of justice that is removed as far as humanly possible from politics. In this country, we are proud of that. That would not matter if one could not show—as I hope to—that the United States, because of its different kind of legal system, is using the extradition arrangements in a way that my noble friend rightly objects to, and why quite a number of other countries are not this list. The problem is that, by putting the United States on this list, we are making a statement about its use of extradition which seems unjustified. I will explain why.

We know that, unlike with the other countries, there is no reciprocal arrangement because the United States has said that it is contrary to its constitutional arrangements to have reciprocity. Our original Act is not reciprocated by the United States. I find that difficult anyway, but we are not discussing that issue here. In the case of the United States, unlike many other countries with which we have had and probably will have reciprocity after negotiation, we accept that it will not extradite people to us in circumstances in which we are extraditing people to it. We are confirming that by saying that we will extend our extradition procedure—perfectly properly in other circumstances, I think—to enable us to arrest people in the circumstances that this Bill makes clear.

We are very fortunate in this country because the whole system is overseen by the judiciary. It would be arguable that it does not matter because the new arrangements will mean that the judiciary will still be able to oversee that. After all, we are not putting every country on the list. We are not saying that the judiciary oversees everybody; we are saying it about these countries and distinguishing them from others.

I will remind your Lordships about two cases that show why I think that this is very real. We have the case of a woman who killed a British boy in Britain, has admitted it and has not been extradited although we have asked for that extradition. Not only has she not been extradited but the United States has refused to reveal what it claims are the special and secret arrangements under which the extradition cannot take place because the person is supposedly covered by diplomatic immunity. However, the United States will not publicly explain the special arrangement. Not only is the lady not extradited, although we have asked for it, but it is on a basis that the United States has refused to reveal. Were this Turkey, Bangladesh or another country, this would be a very good reason for not putting the name on this list.

There is a second reason: the use of the extradition arrangements to pursue a political or commercial end. For the United States it is very often a commercial end. In this I speak of the case of my former constituent Dr Mike Lynch, chairman of one of our most successful companies. He sold his British company to an American company; it was sold under British law in Britain, bought by an American company and operated in Britain. After a bit, the American company had so badly mucked up the running of this business that it wanted an excuse for the sum it had paid, so it called on the British authorities to prosecute Dr Lynch, saying he had misled it. That may or may not be true. It had done very extensive due diligence before, so it is difficult to believe that so great an American company with so much opportunity to look beforehand should have been misled, but that is what it said.

The British authorities investigated and found that there was no case to answer. Therefore, they declined the prosecution. The American company, Hewlett Packard, perfectly rightly—I have no objection to this—went to the civil courts to claim its case. That case has now been heard at great length. It is probably the longest case of this kind ever held in this country. Dr Lynch was cross-examined for many days. The case is over as far as the evidence is concerned, but there has so far not been a judgment, so we do not know whether the civil courts in this country will find my former constituent guilty or innocent. Hewlett Packard is clearly worried about this case. Indeed, to read it one might be worried oneself if one were on that side. But still, we do not know. It is for the judge to decide.

British justice is known internationally as the fairest system in the world. That is why lots of companies that are not here agree with other companies that are not here for their court cases, should they come up, to be decided in British courts; they know that they will get a fair deal. Hewlett Packard has however demanded that Dr Lynch be extradited from Britain to have the case heard not in this country but in the United States. I am quite sure the reason is that it feels a United States court is more likely to make a decision which pleases it—particularly given the geographical position of the court calling for the extradition and its long-standing relationship with Hewlett Packard—and more likely to accept its case than the British one.

We all know that there are many situations in which British companies have found that courts in the United States make decisions that we would find, let us say, commercially political rather than judicially objective. Here we are, saying that this “trusted partner” should be treated in the same way as Canada, Australia, New Zealand, Switzerland and Liechtenstein, all of which have systems that any of us in this Room would be happy to be tried before, but how many of us would genuinely say that, if we had a commercial disagreement with an American company with power and political punch, we would wish to be charged before an American court? That is a different situation.

I have tabled the amendment not because I seek to undermine the original Act, although I think it was a mistake to allow a non-reciprocal arrangement with the United States. I am merely saying that I do not think that the United States should be one of those countries that benefits from a perfectly proper extension of our laws.

My noble friend said that she would not want to have this kind of arrangement with anyone whose judicial system was subject to political influence. President Trump has pointed out that he has changed the judges in the Ninth Circuit because it was

“a big thorn in our side”.

He has now appointed judges who will not be a big thorn in his side. He has made, I think, 181 judicial appointments and encouraged the majority Republican Senate to change as many as possible while he is there so that they get the judges who will to make the sort of judgments that suit the right-wing Republican that he is.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I will say a word on Amendment 9. I obviously agree with what has been said by a number of noble Lords about it. The views of the noble and learned Lord, Lord Judge, suggest that a Minister putting forward a list would have to be mightily careful that the list was of all good, or at least equally good, countries. If there was a doubtful one it would have to be separate. That lesson should be taken to heart. It is very unwise to have a great big list where we are not sure about two or three countries, because we would just lose the whole lot. I suspect that we may be faced in due course with a fair group about which we have some knowledge already. I do not think that that has anything to do with the Bill, but it might be a consequence of granting this power. I imagine that any Minister contemplating this who wished to be successful would be very careful to leave a country out of a list of very good countries and have it in a separate list if he thought that it would risk the others.

I have my own view on how judges are appointed in the United States and am rather anxious that nothing of the sort should appear here. On the other hand, judges in the United States, although they may be appointed for various reasons, have responsibility as judges. The point about this matter is that extradition to the United States or any other country will be decided by a judge, though ultimately subject to the discretion of the Home Secretary. The judiciary here will be in charge of that and obviously the degree to which the explanation given by the United States carries weight will be quite important.

[Baroness Hamwee]

My Lords, this is an interesting group. With regard to the United States and one of the Five Eyes seeing things a bit differently, if this matter comes back on Report, as it may, it would be helpful if the Minister could explain to the House how the human rights criteria that will be applied at the judicial stage would apply in any given situation without using specific cases. That is part of the whole picture.

On Amendment 6 and my suggestion that the word “vary” be deleted, we are told that this is to future-proof the arrangements in case one part of a territory secedes. I find it difficult to envisage all this and I do not see why the Government would not in that situation just delete the original but add the substituted territory. On Amendment 7, I confess I need to read properly what the Minister said. On the criteria listed in Amendment 10, the Minister said that Parliament would have to reject a territory if the criteria were not met. Actually, that is not the way round the amendment is written. Parliament would not be required to reject it but a reference to a territory could be added “only if”. I think those are different; these are on minima.

However, I see absolutely no down side to agreeing the amendment which at the start I said was the most important of this group with respect to the position of the United States. The justification proposing it is that it is not common practice. That does not mean that it is good practice in every situation. I am absolutely with the noble and learned Lord, Lord Judge, who said that it is entirely consistent with support for the Bill. I will not follow his cricketing analogies because I will probably get them wrong again. As I said at Second Reading, we should not be in the business of bulk orders, if I may put it that way.

The Minister said that the affirmative resolution procedure gave Parliament the opportunity to scrutinise. Scrutiny means different things to different people, but it does not mean that you go straight from scrutiny to the remedy you are seeking. I do not think that it is an adequate response to an amendment which I really do not think would cause, as has been said, much more than a few more pieces of paper—a little more typing and standing up and sitting down. We will come back to this at the next stage. It ought to be such an easy one for the Government to concede to divert us from other amendments. For the moment, I beg leave to withdraw Amendment 6.

Amendment 6 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

12: The Schedule, page 10, line 14, leave out sub-paragraph (2)
Member’s explanatory statement
This amendment removes the provision in the bill that allows regulations to amend, repeal or revoke any provision made by primary legislation.

[Baroness Hamwee]

My Lords, I shall speak also to Amendments 13, while Amendment 14 in the name of the noble Lord, Lord Inglewood, is also in this group. Amendment 12 would remove the provision allowing

“regulations to amend, repeal or revoke any provision made by primary legislation.”

This is something to which I have a natural aversion. I appreciate that the regulations in question, in paragraph 29(2) of the schedule, are limited by paragraph 29(1) which refers to regulations

“consequential on the amendments made by this Schedule.”

Is paragraph 29(2) necessary? It suggests that the drafters were anxious that they did not have time to prepare the Bill. I have looked at what the 2003 Act says on this point. Section 219 provides for amendments, repeals and revocations but can deal only with one

“contained in an Act passed in a Session after that in which this Act is passed.”

I do not think that alters my central point, which is my natural aversion to regulations amending primary legislation. Amendment 13 deals with the same point. I beg to move.

[Lord Inglewood]

My Lords, I shall speak to Amendment 14 in this group. I owe the Committee an apology for not adding an explanatory statement, but essentially this is a probing amendment. The reason is that when I tabled it, I was not entirely sure exactly what my anxieties about the proposed legislation might be, but I have spoken to the Minister about my general unhappiness. Interestingly, the noble Baroness, Lady Hamwee, has just talked about paragraph 29(2). It strikes me as extremely clumsy and I am uneasy about it. As I say, that is why I have tabled this amendment and discussed it with the Minister.

Throughout the passage of the Bill thus far, the Government have emphasised that it is about powers of arrest. Of course, much of the Bill is about those powers, but it is clearly set within the context of the extradition system as a whole. One has not only to look at the Title of the Bill to see that; if you look at its substance, it becomes apparent. In the nicest possible way, I think “the Lady complaineth too much” in talking about the focus of the Bill on powers of arrest. The Bill is essentially about the workings of our extradition system as a whole. As the Committee knows—and does not need me to point out—it is essentially divided into two parts; I oversimplify, of course. There is the bit that relates to the European arrest warrant and the bit that relates to the rest.

--- Later in debate ---

[Baroness Williams of Trafford]

I am very happy to do that.

[Baroness Hamwee]

My Lords, I acknowledged that the regulations referred to in paragraph 29(2) must be within paragraph 29(1). I come back to the point that good housekeeping should be done before a Bill is presented to Parliament, not least because it would reduce the amount of time needed on the Bill in Parliament. For many years, I have recognised that it is a great deal easier to sit on this side of the House or Committee and pick holes than it must be to draft this stuff. Nevertheless, it is our job to pick some holes.

I do not apologise for raising this and cannot say that my concerns are wholly allayed: the words “necessary” and “expedient” were used in the delegated powers memorandum, along with “detailed and technical” about the nature of the amendments. I would like to assure myself that the words in the Bill reflect what has been said. I will possibly talk to the noble and learned Lord before the next stage. I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.

Immigration: Points-based System

Baroness Hamwee Excerpts

Tuesday 25th February 2020 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made yesterday in the House of Commons. In their separate policy statement, the Government said that the points system set out in the Statement the Minister has just repeated will reduce overall levels of migration, without telling us what reduction is expected. That leads one to suspect that this policy statement is a continuation of the Government’s policy of talking big, in their eyes, about reducing migration to satisfy their own anti-immigration constituency, when the reality is the exact opposite.

Over the last decade, we have been told by the Government of their determination to reduce net migration. For many years, their objective was to bring it down to the tens of thousands. Net migration actually went up under Conservative Governments over the last decade, even though the Government had control over non-EU migration which, in each and every year since 2010, has been in excess of net migration from EU countries. In 2018 non-EU net migration, over which the Government have control, was in fact three times the rate of net migration from the EU.

Are the Government now telling us that EU net migration—which I believe was about 75,000 in 2018—was made up of large numbers of people who we really do not need in this country? How many people are the Government now saying came into this country in 2018 and 2019 who they now want to stop coming in, first from EU states and secondly from non-EU states, and who will no longer be allowed in under the points system referred to in the Statement?

We have been told that a distinction will be drawn between skilled and low-skilled workers, and that points will be awarded only if a laid-down salary level, skill level and level of ability in speaking English are achieved. The idea is apparently to keep out those whom the Government deem to be low-skilled workers, who appear to include most of those working in care services, retail and hospitality, construction and agriculture, for example. What percentage of jobs in the UK do the Government consider fall into the low-skilled category referred to in the policy statement? Perhaps the Government could tell us in their response.

The Government do not really believe that the jobs they deem to be low-skilled can be filled from people already in the UK, particularly since their claim that 20% of people aged between 18 and 65, who are not in full-time work, are currently available to do these jobs has been somewhat demolished by the facts. Presumably this is why in the Statement there are significant loopholes, such as declaring shortage occupations, to get around the criteria referred to for when the Government inevitably find that labour shortages are damaging the economy and they still need those so-called low-skilled workers, just as we have up to now.

The Statement is less than clear on, for example, the detailed application of the salary thresholds, the position of the families of those coming into the country, the position of those who wish to be self-employed and the criteria for acceptance of degrees under the points system. Presumably, these are issues on which the Government intend to say more later. What is clear, though, is that this points system does not have as its primary objective bringing into the country the people needed to fill the vacancies and shortages that we need to address, as should be the case. Instead, in order to draw this distinction between skilled and low-skilled, an elaborate admissions system will be created in a short time to be administered by a resource-stripped Home Office—a recipe for error, confusion and unfairness, while many people feel somewhat dismayed by the Government’s view of the lack of importance or necessity of the much-needed jobs that they currently undertake.

I suspect the Government will soon learn that posturing with their changed immigration policy will no more work than their earlier posturing over getting net migration down to the tens of thousands. Even this Government will eventually have to recognise that the economic and social needs of the country must take priority in immigration policy. It is for that reason that the evidence suggests that a declared objective of reducing net migration by amounts as yet unstated and unknown will not be achieved by the Government’s intended points-based immigration system, any more than was the commitment to reduce net migration to the tens of thousands. Only a reduction in the necessity of recruiting people from outside the UK will do that—something that I have no doubt the Government, in their heart of hearts, already know.

[Baroness Hamwee (LD)]

My Lords, I too thank the Minister for repeating the Statement, which included the claim that the points-based system will provide “simple and flexible arrangements”. Can they be both? To me, “flexible” suggests some sort of discretion. Or is that about the tradability of points—something on which I for one reserve judgment?

We may understand just how workable this will be when we have details, so I would like to check with the Minister whether the new arrangements will be incorporated in primary legislation, or will they be part of rules? In other words, will Parliament be able to have a good say on them? Indeed, will it mean primary legislation with wide ministerial powers to make changes? I am just checking; your Lordships understand.

Yesterday in the Commons, the Home Secretary said the Government

“will look at the labour market as a whole across key sectors.”—[Official Report, Commons, 24/2/20; col. 44.]

Was that not done before arriving at the points-based system?

What assumptions have been made about emigration? Can the Minister confirm that there is not a pool of economically inactive people available to take up the low-skilled jobs, about which there has been much discussion? Employers have been told they will have to adjust how they operate. How have they responded?

Much has been and will be said about carers. One of those who have spoken is my noble friend Lady Thomas of Winchester, who is in hospital at the moment but emailed me this morning saying that she is “absolutely incandescent”, so I said I would quote her email. She says:

“I am absolutely incandescent about the stupid lack of flexibility for care workers … What may not be realised is the extent to which refugee families settled here (for example from war-torn Somalia) have family members scattered all over Europe who now can travel freely here. They are hard-working carers and often regard those they care for as part of their own family. It is just so shaming that we are turning our back on such caring people, labelling them as ‘low-skilled’.”


I am sure she could have gone on, and I am sure other noble Lords can and will.

It is not possible, obviously, to mention today all the sectors that will be affected, but I want to mention the creative industries—performers and so on—because we are told there will be no change to existing routes. However, many agents and promoters have previously engaged EU performers only. They will need to get into the bureaucratic world of certificates, sponsorship and so on, and they are asking: what will be the “right talent”? I put that term in quotes, as it is the term the Government use and want to encourage. All this and more is very relevant to our economy. How easy will it be for UK creatives to work elsewhere? It will be quite reasonable for there to be reciprocity between nations; if we are negative about people coming in, it will not be surprising if others are too.

There has been much discussion about the lack of time to get the new arrangements in place. Is there any confidence, outside Government, that the changes can be coped with by the end of the year?

Finally, the Migration Advisory Committee has been very forceful about the need for good data. Its recent report says:

“Good data and evaluation are vital to ensure that effective monitoring is in place and necessary adjustments are made in a timely fashion. Without it, there is a danger that the UK, unable to learn from the past, continues to lurch between an overly open and overly closed work migration policy without ever being able to steer a steady path.”


Can the Minister comment? Good evaluation is certainly needed if the Government are to begin to counter the criticisms of what I saw yesterday in the press described as the Government’s

“self-defeating tunnel-vision, exceptionalism and xenophobia.”

Immigration: Refugee Doctors

Baroness Hamwee Excerpts

Monday 24th February 2020 Lords Chamber

[Baroness Hamwee (LD)]

The noble Baroness, Lady Finlay, referred to co-operation and collaboration between the various agencies and the Government to enable refugees who are doctors to practise. Can we add the availability or non-availability of clinical attachments to that list? After all, many of these doctors are among—I hate the term, but the Government use it—the brightest and the best.

[Baroness Williams of Trafford]

Some clinical attachments will, if people have the skills required, come under the purview of doctors, nurses and other medical staff on the shortage occupations list. If not, obviously the requisite salary will be required.

Refugees (Family Reunion) Bill [HL]

Baroness Hamwee Excerpts

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

Moved by

[Baroness Hamwee]

That the Bill be now read a second time.

[Baroness Hamwee (LD)]

My Lords, our society recognises the plight of refugees and our moral obligations, including giving practical expression to our humanitarianism. Our culture recognises the importance of family—as do most cultures. This Bill recognises both.

I first acknowledge the Government’s contribution by way of funds in the Middle East and elsewhere. Pursuing the provisions in this Bill is not to deny either the significance of that contribution or the good example set by the UK, but it is not a complete answer. Many refugees from Syria are still in the region and there is an enormous strain on the neighbouring countries: Turkey, Jordan and Lebanon—which is about the size of Wales and hosts a refugee population amounting to around 30% of its total population, and is not in fact a signatory to the refugee convention. If those countries can do so much, we should do our bit. In 2016, the UK received 3% of asylum applications made in the EU. Per head of population, the UK ranked 18th in the EU, with 0.6 applications per 1,000 people. In the same year globally, 20 people became newly displaced every minute of every day.

I know the Government take the view that the Bill seeks little that is not done already, so I will take it clause by clause. Clause 1(1) provides that a person who has refugee status or humanitarian protection may apply for permission for family members to join him—when I say “him” from time to time, I generally mean “him or her”. Indeed, that is the position in our current Immigration Rules, but they are rules, not primary or secondary legislation—not something Parliament can amend or reject. Rules are an executive instrument, subject to change without Parliament’s involvement.

The first three groups of people listed in Clause 1(2) can, under the current rules, be sponsored, but only by an adult. People in the other categories may be given leave—that is, leave to enter or remain in the country— by discretion. I do not think it unreasonable for a refugee to have a right to be joined by family members, and it could not be said that those listed in Clause 1(2) are distant relatives. Where there is discretion there are bound to be inconsistencies—if leave is given at all, of course—in the type of leave or length of stay granted; family members may get different lengths. There may be a residency criterion—for instance, for housing.

Some noble Lords were at a meeting last week in Parliament and heard Khalil, a very mature and tall teenager, tell them that he had reached the UK alone. His parents and siblings came later and separately and eventually they were together, albeit briefly. He said, “They’ve been told they have to go back to Birmingham because that was where my Mum was sent to live when she was an asylum seeker, and because I came as a refugee child on my own, I have to live in Essex, so we are still not together. My brothers and sisters are at school in London and my dad is working in a restaurant. If we had to move to Birmingham, then they would miss out on schooling once again and my dad would lose his job and have to find a new one, which might not be easy. The reason we’re still separated, even though we are in the same country, is because I couldn’t apply for family reunion when I came to England, and that’s the reason I’m still living on my own”.

Home Office caseworkers have guidance and must consider,

“exceptional circumstances or compassionate factors”.

The guidance tells them:

“Entry clearance or a grant of leave outside the Immigration Rules is likely to be appropriate only rarely”.


I heard, for instance, of a disabled person with a carer who is a family member who was allowed leave. “Exceptional circumstances” is a term we are used to considering in various contexts, but often these circumstances are in fact the norm in this situation. One of the people who may—I stress “may”—be given leave is an unmarried child over 18. The position of a 19 year-old daughter or son alone in a refugee camp without family support is something that would worry any of us.

At the meeting to which I referred, we also heard from Maya, a hugely impressive young Syrian. She spoke no English when she arrived but, four years on, and very fluent, she is studying aeronautical engineering. So many of the young refugees I have met have been keen to contribute to society and are model citizens. Her father took the initial journey by himself and she and her mother later joined him under the current rules, but only after several attempts to get visas from the embassy in Beirut, having travelled from northern Syria, been held up at the border and arriving late at the embassy, where they were told that, as they had missed the appointment, they could not be dealt with, so that difficult and dangerous journey had to be repeated in both directions. She said, “There was no respect at the embassy; no respect for our papers”. Dangerous journeys to embassies and consulates to make applications are a common story. Travelling through war zones is not like catching a bus at the end of the road.

Then there are the unaccompanied asylum-seeking children, whose situation has particularly caught the public imagination. I do not want to dehumanise them by using the acronym UASC. Rule 319X currently applies and its existence is implicit acceptance of the importance of family, though the need for,

“serious and compelling … considerations which make exclusion of the child undesirable”,

seems to go in the other direction and suggests exceptionality. However, it is not an alternative to the provision in Clause 1(3) of the Bill. Among the other requirements are that the child can and will be accommodated with a relative—usually in this situation an aunt, uncle or sibling—in accommodation “owned or occupied exclusively” by that relative, and will be maintained by that relative,

“without recourse to public funds”.

Often these criteria cannot be met by the relative. In addition, the child must hold a valid entry clearance or leave to remain on arrival—I have referred to the difficulties in getting documentation—and a substantial fee is payable.

In the case of child asylum seekers, we are told by the Government that if we were to allow them to sponsor their parents or other family, this would act as a “pull” factor and they would be sent here by family so that the family had a way in. I will leave aside whether it is consistent to argue this at the same time as arguing that what the Bill would do already applies. I will also leave aside the fact that there are enough “push” factors—but what evidence is there for this? I think that my noble friend Lady Sheehan will say a little more about this.

I can understand that, once a child has reached Europe, the UK may have more of a pull factor than some other countries—although this is not invariably so. However, that is quite different from what is called a “perverse incentive” to send a child out of his own country—and, frankly, I do not buy it. The more we learn of the situation in France, Greece and elsewhere—we recently debated in this House the situation post the Calais Jungle, including very disturbing findings by the Refugee Rights Data Project and the Human Trafficking Foundation: the clue is in that organisation’s name—the more manifest is the need for safe and legal routes to reduce opportunities for criminals to exploit and abuse. Without safe and legal routes, children are destined for abuse.

Giving the right to a child refugee to have his family join him would not be novel. The EU directive on the right to family reunification does so, although we are not a signatory, and Clause 1(3) is based on this. To use another phrase with which noble Lords will be familiar, what in the following situation is in the “best interests of the child”—a child whose father has been killed in Afghanistan and whose mother sends him away for his protection? He is a child in need of protection under the Geneva Convention and it is in his interests to be joined and cared for by his family.

Noble Lords may wonder why I have not mentioned Dublin III. We are concerned with the position post Brexit, but that is a regulation dealing with arrangements between states regarding the transfer of asylum applications. It is a related but parallel issue. I have included an exception to the rights in Clause 1 if that would be in the interests of national security, and applied this also to Clause 2, which concerns British citizens with family members who have a protection need. The problem came to prominence just before the Calais Jungle was broken up. A father was settled in the UK. His daughter was in the Jungle, but he could not meet the fees and income requirements of our family visa rules and so he, the holder of a British passport, went to live in the Jungle to look after his daughter.

Clause 3 allows for the Secretary of State to make regulations,

“to extend the definition of a family member, and … provide for requirements for evidencing family membership or dependency”.

I referred to evidencing, which is not as simple as Ministers ordered during the passage of what became the Legal Aid, Sentencing and Punishment of Offenders Act. In debates on the Bill, Ministers said that keeping family reunion cases in scope would cost £5 million a year. I leave it to noble Lords to take their own view of that amount. Documents may not be available; they may have been left behind or may never have been provided in the country of origin. DNA testing would help; the Government used to fund it, but no longer. Indeed, the chief inspector has recommended its reinstatement. I mentioned travel to a UK embassy and back, which can be a dangerous journey in itself. Centres have been set up in France to help refugees—I had understood in conjunction with the UK, but we hear of difficulties in reaching them and of various practical problems. The last I heard was that the UK had sent over a single official to assist. I hope that that is wrong.

If everything I have mentioned is already our law, it is not working in practice. Hard cases make bad law, but bad law—or no law—makes hard cases. The EU directive on the right to family reunification states in a recital that it is,

“a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the … State, which also serves to promote economic and social cohesion”.

I agree. Families belong together. I beg to move.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I thank everyone who has supported the Bill and I thank the Minister not only for her response but for that last offer. I am happy to work with anyone, however much I disagree with certain aspects of what is being done.

The Government’s exposition of a positive response to refugees does not really accord with what speakers have heard and know and have told the House. No doubt that is because so many people are affected. Much reference has been made to the pull factors and in response I will adopt the term of the noble Lord, Lord Kerr: implausible. I am not clear why primary legislation is a bad thing in this situation, and with regard to the rules, I simply repeat—because I do not want to make my speech all over again—that exceptional circumstances have become normal circumstances, so you cannot apply the exceptionality factor.

The fact remains that we have a situation that is of huge concern to all noble Lords regarding separated families, and the comprehensive framework, which was referred to by the Minister, is not doing the job we all want to see. The threads which have run throughout this debate include how we wish our country in 2017 to be and to be perceived, including as one that expresses its humanity and the value of family, as well as practical reasons, including those which are not actually altruistic about the enrichment of our society. Reference was made at the start of the debate to informed public opinion. Politicians need to take the lead in informing public opinion and in debating with the public. I hope that noble Lords will agree to give this Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

Immigration Control (Gross Human Rights Abuses) Bill [HL]

Baroness Hamwee Excerpts

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I too congratulate the noble Baroness. She has an ability to make the issues that she espouses very real to those who listen to her.

Like other noble Lords, I have spotted the paradox of spending a couple of hours discussing allowing refugees’ families and children who are by themselves to seek sanctuary in the UK, yet without this Bill we will not be able to keep out some very bad—I have written “but”; it might be “and”—wealthy people, who buy multi-million pound apartments, spend—I also wrote “Harrods”—and have all the benefits of our society, when their presence here is so offensive.

I too recall the amendment to the then Criminal Finances Bill. Like other noble Lords, it led me to read Bill Browder’s book. I fear that we will provoke an awful lot of books coming our way from others who see that we sometimes read them. Like the noble and learned Lord, my reaction is often not to want to do so. However, it is such a powerful description of what led to his campaign for what one might hope to be the Magnitsky amendment number one, of which this Bill is part two. A drawback of being such a good read is that it is difficult to remember that the book’s content is fact, not fiction, but the fiction is terrifying.

Earlier this morning, the debate on my Refugees (Family Reunion) Bill focused very much on how we wish our country to be, and how we wish it to be perceived. Human rights should, of course, by definition be enjoyed by every human being but, equally, every human being, however powerful, should observe them and apply them. Transparency is a very important factor in that. Therefore, I enthusiastically support the Bill we are discussing.

I have one tiny, not a caveat but rather an observation, on enforcement, which was raised by the noble Lord, Lord Trimble—namely, should immigration officers have these powers without ministerial approval? I am not always enthusiastic about giving extra powers to the Home Secretary, and there is an issue around whether this might amount to political intervention in a human rights issue. However, I believe that in the US the President is required to submit the Magnitsky list to the appropriate congressional committee. I simply raise this as a process issue, not in any way as opposition. I wish this Bill well. I think it will get a better reception from the Government than my Bill did earlier.

--- Later in debate ---

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

My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for bringing forward this debate. Many noble Lords, including the noble Lord, Lord Rosser, the noble Baroness, Lady Hamwee, my noble friend Lady Wheatcroft and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that they had read the book Red Notice, as have I. The word “compelling” comes to mind—and if it was fiction, it would certainly be a bestseller. I know that the noble Baroness, Lady Kennedy, was not present for much of the passage of the Criminal Finances Act, but she may be interested to read the section in Part 1 to which she referred today, as there was some compelling debate at that juncture. My right honourable friend the Home Secretary announced very recently the setting up of the National Economic Crime Centre for the UK, which brings together all the agencies to tackle serious fraud and economic crime.

The Bill seeks to provide for the refusal and curtailment of leave where a person is known to be, or to have been, involved in gross human rights abuses. The Government are committed to improving human rights across the world by holding states accountable for their human rights records. We take a strong stance against individuals who are known to have committed gross abuses and violations, and I commend the wish of the noble Baroness, Lady Kennedy, to act firmly to protect our borders from such individuals.

The noble Baroness, Lady Kennedy, talked about naming individuals, and this touches on a point made by my noble friends Lord Trimble and Lady Warsi. There are compelling reasons for naming and shaming individuals but the Government have always stated that they will not do that. Doing so would send a message to those not named that, by their omission, they are of less concern than those who are named, although that might not be the case. Naming individuals might also alert those named and not named as to the level of information that the Government hold on them.

The noble Lord, Lord Rosser, asked about the number of people refused leave to enter or leave to remain. He will understand that I cannot give that number, but it has always been the Government’s position that for further legislation to be warranted in this area there would need to be a real demonstration that the existing powers were insufficient. I hope I can demonstrate that the provisions proposed in the Bill remain unnecessary.

The Government have a range of measures that provide for robust action to be taken against individuals known to be involved in human rights abuses. Obviously I cannot comment on individual cases, some of which are subject to exclusion orders, but I would like to take noble Lords through the policies and procedures that we have in place to prevent those involved in gross abuses from coming to the UK or securing immigration status here.

As the noble Baroness, Lady Hamwee, pointed out, the Home Secretary has the power to exclude a foreign national if she considers that their presence in the UK will not be conducive to the public good or if their exclusion is justified on grounds of public policy or public security. A person may be excluded for a range of reasons, including national security, criminality, involvement in war crimes and crimes against humanity, corruption and unacceptable behaviour. There is no time limit on exclusion, and a person who is excluded remains so until the Home Secretary agrees to lift that exclusion. Having been excluded by the Home Secretary, anyone who applies for entry clearance or leave to enter must be refused so long as the exclusion remains in force. Such a power is serious and no decision is taken lightly. All decisions have to be based on sound evidence and must be proportionate, reasonable and consistent.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, talked about the test threshold. He is of course correct in his reference to the test in the Immigration Rules. Decisions to exclude must be taken only on the basis of sound evidence. The UK operates a watch list, which is used to flag individuals of concern, and those known to be involved in human rights abuses would be included on that list.

The noble Baroness, Lady Afshar, talked about excluding human rights abusers. Contrary to her concerns, those involved in this sort of shocking behaviour can already be excluded. However, we can make an express amendment to the current guidance to make it absolutely clear that involvement in gross human rights abuses will be grounds for exclusion. That may be helpful.

The noble Baroness, Lady Hamwee, talked about officers’ powers as opposed to the democratic process, although I think that she meant “in conjunction with” the democratic process. Border Force officers’ powers derive from the Immigration Act 1971, particularly those in Schedule 2 relating to refusal of entry to those who do not qualify for entry to the UK.

[Baroness Hamwee]

Yes, of course, there is the democratic process, but I was also concerned that it would be very unusual for it not to be within the context of the Executive’s decision and the Secretary of State’s consideration of the matter. It is not something to be done lightly at Dover.

[Baroness Williams of Trafford]

I do not think I was making light of the noble Baroness’s point. I hope she did not think that.

It is precisely because each decision to make an exclusion order is based on sound evidence and the facts of each individual case that it would not be proportionate or reasonable to exclude every national of a particular country. The vast majority of them will be law-abiding citizens engaged in activity which meets the threshold for exclusion. The current sanctions regime imposed by the UN Security Council and the Council of the European Union adds an additional layer of protection preventing non-EEA nationals of concern from travelling to the UK. International travel bans apply to individuals associated with regimes or groups whose behaviour is considered unacceptable by the international community. Where an EEA national or their family member is subject to a UN or EU travel ban, we will normally refuse admission to the UK on the grounds of public policy or public security.

The Immigration Rules provide for the refusal of entry clearance, the refusal of leave to enter or to remain and the curtailment of leave to a non-EEA national where that person has a criminal conviction, or on the basis of their conduct, character or associations, including where there is independent, reliable and credible evidence of their involvement in human rights abuses. In the case of EEA nationals we can refuse admission to the UK where public policy or public security is engaged. The person must be shown to be a genuine present and sufficiently serious threat to one of the fundamental interests of our society.

Except in exceptional circumstances, a foreign national subject to immigration control who has been convicted of a criminal offence and sentenced to a period of imprisonment faces a mandatory refusal of visa or leave to enter the UK for a specified period. The length of the prison sentence will determine the duration of the ban from the UK. For those persons given a prison sentence of four years or more, an indefinite ban will apply; where a person has received a sentence of between 12 months and four years, there is a 10-year ban; and for those persons with a sentence of less than 12 months, there is a five-year ban. This applies to those convicted in the UK or overseas.

The Government also recognise the importance of distinguishing between those who are entitled to come to the UK and stay here and those who are not. We have a number of measures to assist with this. For those who need a visa to come to the UK, the application process requires the applicant to declare any criminality or immigration offence and to provide their facial image and fingerprints as biometrics. Entry clearance officers are required to check a range of databases, including the biometric, Home Office and police databases. This allows us to check the details of any UK criminal record and identify important information about the applicant’s immigration history, including any travel ban or exclusion order. At the border we undertake similar checks against police, security and immigration watch lists, as I have already said, to identify people of concern. Border Force officers can and do refuse entry if they believe that a foreign national poses a risk.

The Immigration Rules include provision for leave to remain to be curtailed and for indefinite leave to remain to be revoked if we become aware that a person with leave, including refugee status, has been involved in gross human rights abuses. Where a person cannot be removed from the UK because it would breach their human rights, we will consider granting short periods of restricted leave.

I am grateful for the opportunity to set out the wide range of government powers to deal with those committing gross human rights abuses. The measures proposed by the noble Baroness, Lady Kennedy, are not necessary to protect our borders from undesirable individuals. The existing legislative framework prevents those involved in gross human rights abuses entering the UK and, indeed, goes further by ensuring that we can consider an applicant’s complete background and criminal history when deciding whether or not to grant entry.

I thank the noble Baroness for bringing forward this debate today.

Data Protection Bill [HL]

Baroness Hamwee Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 15th November 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, from these Benches we also have some concerns about the national security and defence exemption. My noble friends Lord Clement-Jones and Lord Paddick have their names to a clutch of amendments to Clauses 24 and 26, and to a replacement for Clause 25—these are Amendment 124C and so on. These amendments essentially probe what Clause 24 means and question whether the requirements for national security certificates are adequate.

My first question is: what processing is outside the scope of EU law, and so would fall within Part 2 and not within Parts 3 and 4, the parts of the Bill on law enforcement and the intelligence services? Many of these amendments were suggested to us by Privacy International and one or two by Big Brother Watch. Those who know about these things say that they do not know what certificates exist under the current regime, so they do not know what entities may benefit from Clauses 24 to 26. However, Privacy International says that in their current form certificates are timeless in nature, lack transparency, are near impossible to challenge and offer overly broad exemptions from data protection principles, and all the rights of the data subject.

My second question is: what are “defence purposes”? That phrase does not feature in the interpretation clause of the Bill. The Explanatory Notes, in referring to the 1998 Act, refer to the section about national security. Is defence not a national security matter? There are very broad exemptions in Clause 24 and Privacy International even says that the clause has the potential to undermine an adequacy decision. For us, we are not convinced that the clause does not undermine the data protection principles—fairness, transparency, and so on—and the remedies, such as notification to the commissioner and penalties.

I note that under Clause 25(2)(a), a certificate may identify data,

“by means of a general description”.

A certificate from a Minister is conclusive evidence that the exemption is, or was, required for a purpose of safeguarding national security, so is “general description” adequate in this context?

Amendment 124L proposes a new Clause 25 and is put forward against the background that national security certificates have not been subject to immediate, direct oversight. When parliamentary committees consider them, they are possibly tangential and post hoc. Crucially, certificates are open-ended in time. There may be an appeal but the proposed new clause would allow for an application to a judicial commissioner, who must consider the Minister’s request as to necessity and proportionality—words that I am sure we will use quite a bit in the next few hours—applying these to each and every provision from which exemption is sought. The Committee may spot that this could owe something to the Investigatory Powers Act.

Amendment 137P takes us forward to Part 3, the law enforcement part of the Bill. Clause 77(5) gives individuals the right to appeal against a national security certificate, but individuals will not know that they have been subject to such a national security certificate if the certificate itself takes away the specific rights which would require a controller or a processor to inform individuals that there was such a restriction in effect against them. The whole point of a right to access personal information and, on the basis of that, the right to appeal against a restriction, does not seem to us to work. The amendment provides for informing the data subject that he is a subject to a certificate.

Amendment 148C is an amendment to Part 4, which is the intelligence services part of the Bill. Clause 108 refers to an exemption being “required” for the purposes of national security. Our amendment would substitute “necessary”, which is a more objective test. I might require something to be done, but it might not be necessary. It is more subjective. Amendment 148D would—I note the irony here—require a certificate because Clause 109 seems not to require it, although the certificate itself would be conclusive. Finally, Amendment 148H is our response to the Constitution Committee, which recommended that the Government clarify the grounds of appeal for proceedings relating to ministerial certificates under Clause 109, other than judicial review. We have set out some provisions which I hope will enable the Minister to respond to the committee’s recommendation.

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

My Lords, I thank all noble Lords who have spoken to these amendments on the scope of the national security and defence exemptions in Parts 2 and 4 and the provisions in respect of national security certificates.

Amendments 124A, 124M and 124N relate to the exemption in Clause 24 for defence purposes. Amendments 124A and 124N seek to reinstate wording used in the Data Protection Act 1998 which used the term “combat effectiveness”. While it may have been appropriate for the 1998 Act to refer to “combat effectiveness”, the term no longer adequately captures the wide range of vital activities that the Armed Forces now undertake in support of the longer-term security of the British islands and their interests abroad and the central role of personal data, sometimes special categories of personal data, in those activities. I think that is what the noble Lord was requiring me to explain.

Such a limitation would not cover wider defence activities which defence staff are engaged in, for example, defence diplomacy, intelligence handling or sensitive administration activities. Indeed, the purpose of many of these activities is precisely to avoid traditional forms of combat. Yet without adequate provision in the Bill, each of the activities I have listed could be compromised or obstructed by a sufficiently determined data subject, putting the security, capability and effectiveness of British service personnel and the civilian staff who support them at risk.

Let me be absolutely clear at this stage: these provisions do not give carte blanche to defence controllers. Rights and obligations must be considered on a case-by-case basis. Only where a specific right or obligation is found to be incompatible with a specific processing activity being undertaken for defence purposes can that right or obligation be set aside. In every other circumstance, personal data will be processed in accordance with GDPR standards.

Amendment 124M probes the necessity of the applied GDPR’s article 9 exemption for defence purposes. Article 9 provides for a prohibition on processing of special categories of personal data. If we did not modify the application of article 9 for defence purposes, we would be hampering the ability of the Armed Forces to process certain personal data, for example, biometric data. This could have a detrimental impact on operations and other activities carried out by the Armed Forces.

I firmly believe that it is in the UK’s national interest to recognise that there may sometimes be a conflict between the individual’s right to have their personal data protected and the defence of the realm, and to make appropriate provision in the Bill to this end. I think that the noble Baroness, Lady Hamwee, asked about the publication of security certificates. National security certificates are public in nature, given that they may be subject to legal challenge. They are not secret and in the past they have been supplied if requested. A number are already published online and we will explore how we can make information about national security certificates issued under the Bill more accessible in future. She also asked about the timelessness of these certificates. They are general and prospective in nature, and arguably no purpose would be served by a requirement that they be subject to a time limitation. For example, in so far as a ministerial certificate allows the intelligence services to apply a “neither confirm nor deny” response to a subject access request, any certificate will inevitably require such a provision.

Amendments 124C, 124D, 124E, 124F, 124P and 148E seek to restrict the scope of the national security exemption provided for in Parts 2 and 4 of the Bill. I remind the Committee that Section 28 of the Data Protection Act 1998 contains a broad exemption from the provisions of that Act if the exemption is required for the purpose of safeguarding national security. Indeed, Section 28 provides for an exemption on such grounds from, among other things, all the data protection principles, all the rights of data subjects and all the enforcement provisions. Although we have adopted a more nuanced approach in the Bill, it none the less broadly replicates the provisions in the 1998 Act, which have stood the test of time. Crucially, under the Bill—as under the 1998 Act—the exception can be relied upon only when it is necessary to do so to protect national security; it is not a blanket exception.

It may assist the Committee if I provide a couple of examples, first in the context of Part 4, of why the exemption needs to be drawn as widely as it is. Clause 108 includes an exemption from Clauses 137 to 147 relating to information, assessment and enforcement notices issued by the Information Commissioner. It may be necessary for an intelligence service to apply this exemption in cases of extreme sensitivity or where the commissioner requested sensitive data but was unable to provide sufficient assurances that it would be held securely enough to protect the information.

In relation to the offence of unlawfully obtaining personal data, much intelligence work involves obtaining and then disclosing personal data without the consent of the controller. For example, if GCHQ intercepts personal data held on a foreign terrorist group’s computer, the data controller is the terrorist group. Without the national security exemption, the operation, although authorised by law, would be unlawful as the data controller has not consented. Similarly, reidentification of deidentified personal data may be a valuable source of intelligence if it can be reidentified. For example, an intelligence service may obtain from a computer a copy of a list of members of a terrorist group who are identified using code names, and from other sources the service believes that it can tie the code names to real identities.

The need for a wide-ranging exemption applies equally under Part 2 of the Bill. Again, a couple of examples will serve to illustrate this. Amendment 124C would mean that a controller processing data under the applied GDPR scheme could not be exempted from the first data protection principle as it relates to transparency. This principle goes hand in hand with the rights of data subjects. It cannot be right that a data subject should be made aware of a controller providing information to, say, the Security Service where there are national security concerns, for example because the individual is the subject of a covert investigation.

To take another example which touches on Amendment 124D, it is wholly appropriate to be able to limit the obligation on controllers under article 33 of the applied GDPR to disclose information to the Information Commissioner where the disclosure would be damaging to national security because, say, it would reveal the identity of a covert human intelligence source. As is the case under Part 4, this exemption would be applied so as to restrict the information provided to the commissioner, not to remove entirely the obligation to report appropriate details of the breach.

I hope that this has given the Committee a flavour of why the national security exemption has been framed in the way that it has. As I have indicated, the Bill’s provisions clearly derive from a similar provision in the existing Data Protection Act and are subject to the same important qualification: namely, that an exemption may be applied in a given case only where it is required for the purpose of safeguarding national security.

--- Later in debate ---

I apologise for the lengthy explanation of the Government’s views on these amendments, but I hope noble Lords will feel free not to press them.

[Baroness Hamwee]

My Lords, the Minister has just proved a point that I made to a colleague who asked me whether I could explain all my amendments, and I said, “If I don’t, the Minister will”. Let us see what the Constitution Committee has to say, as I take its concerns seriously. To dispose of one small point, I accept what she says about the “timelessness”, which I think was the word she used, of certificates. I accept that some must always apply, but perhaps it is a point that the Government can take into account when thinking about publication of certificates whose relevance has—“expired” is probably the wrong term—passed.

I am still concerned about what is meant by “defence purposes”. The Minister referred to civilian staff. I cannot remember what the object was in the sentence, but we all know what she means by civilian staff. To take a trite example, can the Minister confirm that in “defence purposes”, we are not talking about records of holiday leave taken by cleaners, secretaries and so on working in the Ministry of Defence? “Defence purposes” could be read as something very broad. I will not ask the Minister to reply to that now, but perhaps I can leave the thought in her head.

Finally, I do not think that the right of appeal provides the same protection as applying oversight from the very start of the process. We have had that debate many times, but I shall leave it there for now. There is quite a lot to read, so I am grateful to the Minister for replying at such length.

[Lord Kennedy of Southwark]

My Lords, I thank the Minister for her response, which was very detailed. It was helpful to the House to get it on record. These are serious matters. The rights of the data subject must be protected, but equally there are issues of national security, and we must get that balance right. The House has been assured that we will get the balance right, which is an important part of our work here today. I am very pleased with the detailed response, and I have no issue with it whatever.

I shall read Hansard again tomorrow, as these are very serious matters, to fully take in all that the Minister has said. At this stage, I am happy to withdraw my amendment.

--- Later in debate ---

Moved by

[Baroness Hamwee]

124Q: Clause 28, page 17, line 27, after “Schedule 7” insert “to the extent that the person has functions for any of the law enforcement purposes”

--- Later in debate ---

[Baroness Hamwee]

I shall speak to Amendment 124Q and to a number of amendments in this group. I start with a general point. The number of amendments that we have tabled to Part 3 in particular, but also to Part 4, might suggest considerable opposition to the Bill, but I reassure the Committee that that is not the case. We are on a probing mission generally. We have some serious objections but, in general, we support where the Bill is going.

The probing in many cases is because of the language used. It is about the different uses of language in EU and UK legislation, and how language is used when something is transposed, to use the term non-technically, into UK law. There are different traditions; laws develop in different ways. I might sum it up by saying that it is a matter of style, but the style may have an impact on the meaning. That is why we are using the fact that the Bill has started in this House, where we have a tradition of reading every word and questioning every other word, to get on the record some of the things that we have identified as being helped by explanation.

This group is about definitions. Amendment 124Q would limit “competent authorities”, as they are defined and listed, to the extent of their law enforcement functions. I mentioned just now staff who work at the Ministry of Defence but do not have jobs that come remotely close, in themselves, to defending the country, although they support those who do. It occurred to me that police forces similarly, even if it is above that kind of administrative level, deal with more than law enforcement, if there are still enough coppers around. Prevention work in schools is one example. Then there is dealing with internal human rights—I beg noble Lords’ pardon, I mean human resources—records. I use the acronym HR too often.

The parties to a collaboration agreement are not necessarily policing bodies or even public sector bodies, which fall within these provisions. Criticising my own amendment, I wondered if it would be confusing to have different regimes applying to different activities—the law enforcement ones on one hand and the others on the other—but there are similar distinctions elsewhere in the Bill.

--- Later in debate ---

[Lord Young of Cookham (Con)]

The co-pilot is in charge of this leg of the legislative journey, so there may be some turbulence.

I am very grateful to the noble Baroness for her explanation of these amendments. I particularly welcome what she said at the beginning of her remarks—namely, that these were probing amendments designed to improve the style. We are all in favour of improving style. Having read previous Hansards, I know that there has been broad cross-party support for the Bill’s provisions, particularly this part of it. I know that the Liberal Democrat Benches are particular enthusiasts for enshrining in UK law the provisions of the EU law enforcement directive.

As the noble Baroness has indicated, this group of amendments relates to the definition of various terms used in Part 3, including that of a competent authority and the meaning of “profiling”. I also welcome the contribution of the noble Lord, Lord Kennedy, in support of some of the amendments.

The scope of the law enforcement processing regime is provided for in Part 3 of the Bill. Unlike Part 4, which applies to all processing of personal data by the intelligence services, the scheme in Part 3 is purpose-driven. The Part 3 scheme applies to processing by competent authorities, as defined in Clause 28, for any of the law enforcement purposes, as defined in Clause 29. This approach is clear from a reading of Part 3 as a whole. For example, each of the data protection principles in Clauses 33 to 38 refers to processing for any of the law enforcement purposes.

The definition of a competent authority needs to be viewed in that context. Competent authorities will process personal data under the scheme in Part 3 only where such processing is for one of the law enforcement purposes. If they process data for another purpose, as the noble Baroness indicated—for example, for HR management purposes—the processing would be undertaken under either the GDPR or applied GDPR scheme, as the case may be. That would be the default regime. I am not sure there is a case for yet another regime on top of the two we already have. As paragraph 167 of the Explanatory Notes to the Bill makes clear, a government department will be a competent authority for the purposes of Part 3 only to the extent that it processes personal data for a law enforcement purpose. For example, where DWP processes data in the course of investigating criminal offences linked to benefit fraud, it will do so as a competent authority.

The approach we have taken in Schedule 7 is to list all the principal law enforcement agencies, including police forces, prosecutors and those responsible for offender management, but also to list other office holders and organisations that have law enforcement functions supplementary to their primary function. For example, the list in Schedule 7 includes some significant regulators. We should remember that the definition of “law enforcement purposes” includes the “execution of criminal penalties”, as set out in Clause 29. That being the case, it is entirely appropriate to list contractors providing offender management services. I hope this explanation deals with Amendment 129A. As I explained a moment ago, where such contractors process data for a non-law enforcement purpose—again, an example given by the noble Baroness—they will do so under the GDPR or applied GDPR scheme.

Schedule 7 is not, and is not intended to be, a wholly exhaustive list, and other organisations with incidental law enforcement functions will come within the scope of the definition of a competent authority by virtue of Clause 28(1)(b). Police and crime commissioners, to which Amendment 127A relates, may be a case in point, but if they process personal data for a law enforcement purpose, they will do so as a competent authority by virtue of Clause 28(1)(b). The government amendments in this group should be viewed against that backdrop.

Since the Bill was introduced, we have identified a number of other organisations that it would be appropriate to add to the list in Schedule 7, and Amendments 125, 126, 128 and 129 are directed to that end. Government Amendment 127 modifies the existing entry in respect of the independent office for police conduct in recognition of the fact that under the reforms we are making to the Independent Police Complaints Commission, the director-general will be the data controller of the reformed organisation.

The amendments to Clause 31 all seek to amend the definition of profiling. First, Amendment 129C seeks to include “attributes” in the definition of profiling, which currently refers to “aspects”. The existing wording reflects the terminology used in the LED, which is clear. In any event, the two words do not differ much in substance, so little is gained by the proposed addition.

In Amendment 129B and Amendments 129D to 129F the noble Baroness seeks to widen the definition of profiling so that it is not restricted to “certain” areas of profiling or to the aspects listed. However, the personal aspects itemised in the definition are not intended to act as an exhaustive list, and the inclusion of the words “certain” and “in particular” do not have this effect. The list refers to those aspects considered of most importance to profiling. Again, for these reasons, these amendments are not necessary. I think the noble Baroness conceded that we were simply replicating the existing terminology.

I hope I have been able to reassure her on these points and that she will be content to withdraw her Amendment 124Q and support the government amendments.

[Baroness Hamwee]

My Lords, to take that last point about certain areas of profiling first, obviously I did not make myself clear, as I want the opposite of what the Minister read me as wanting. I want to be clear that I do not want to leave areas for doubt, so I sought to restrict rather than to extend.

On police and crime commissioners, I am a little baffled as to why, if so many other organisations which have some functions that are about law enforcement are included, police and crime commissioners should be left to rely on Clause 28(1)(b) rather than being included specifically.

Finally, yes, we are enthusiasts for incorporating the directive. We want to be clear that the incorporation works. Should I talk for another moment or two in case a message is coming? There was a thumbs up to that suggestion. We are great enthusiasts for certain things that the EU is proposing—I am being a little flippant and this will read terribly badly in Hansard. As I said at the start, all this is so that we may be assured—and this is the stage at which to do it—that what is being incorporated works in the way that reading the words as a sort of narrative suggests.

[Lord Young of Cookham]

Some in-flight refuelling has arrived. The noble Baroness made a valid point about why we had added certain organisations to Schedule 7 but not the police and crime commissioners. We will reflect on that between now and Report.

[Baroness Hamwee]

I am grateful for that. I beg leave to withdraw the amendment.

Amendment 124Q withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

129G: Clause 32, page 19, line 17, leave out “and fair” and insert “, fair and transparent”

[Baroness Hamwee]

My Lords, this group of amendments is about data protection principles. Our Amendments 129G and 129H would add transparency to the requirements of lawfulness and fairness for processing. Here, the directive is again being reflected, but why, since transparency is a requirement in the case of the intelligence services? I confess that I found this counterintuitive. I might have expected the services to have an argument against transparency because of the very nature of what they do, but not so law enforcement—at least, not so much.

Amendment 129J enables me to ask, as I did at Second Reading, why some activities are “strictly necessary” and others merely “necessary”. This arises in several places and this is the first example, although for good measure my Amendment 133ZJ seeks to add “strictly” to another of these—I am not sure that it was my best choice, but there you go. The point is that “strictly” calls into question just how necessary something that does not attract the term is. This may be an example of adopting language used in other legislation and directives without it having been considered in the context of UK legislation.

The Minister used the example of our seeking in the first group of amendments on these parts to change a term used in current legislation. I take that point, because it opens up a question as to whether there is any distinction. The point I am making about terminology is not a million miles away from that.

Amendment 130A concerns the scope for the Secretary of State to amend Schedule 8 by regulations. That schedule sets out the conditions for “sensitive processing”—in other words, when that processing is permitted. Should the Secretary of State be able to add circumstances when it is permitted, or to vary the schedule, omitting items from the schedule by regulations would fulfil the objective of protecting the data subject. That is very different from “adding” or “varying”.

Amendment 133ZB deals with another instance of different legislative styles. In Clause 34(1), the law enforcement purpose must be “legitimate”—an interesting term when applied to law enforcement. I suggest as an alternative “authorised by law”, a term used later in the clause, in order to probe this. In not very technical language “legitimate” suggests something wider than legal. It has elements of logic and justification and might import the notion of balance. The term comes from not only the GDPR but the 1995 directive—so there is a history to this—and there are many examples of the accepted meaning of “legitimate” in EU law. However, I am concerned about how we interpret the term and apply it in the UK. Looking to the future, what will happen when we are cut adrift from the European Court of Justice? Presumably we will have to rely on the development of case law in the UK and the different UK jurisdictions. It is worth thinking about how this may be dealt with as we go forward.

On Amendment 133ZD, under Clause 36(3) a clear distinction needs to be made “where relevant”—the amendment would delete this—as far as possible between data relating to different categories of data subject. I do not see what “where relevant” means in this context. It begs the question of whether or not something is relevant and whether the provision is applicable.

Amendment 133ZE applies to Clause 36(4), which deals what must be done—or, rather, not done—with inaccurate, incomplete or out-of-date data, which must not be “transmitted or made available”. That is the phrase used and my amendment probes the question of why the term “disclosed” is not used. There is a definition of “processing” in Clause 2, which includes,

“disclosure by transmission, dissemination or otherwise making available”.

In other words, “disclosed” would cover everything.

Amendment 133ZK relates to Clause 40, which deals with the controller having an appropriate policy document. Under that clause, the controller must make the document available to the Information Commissioner. Is it not a public document? Should it not be published? The amendment proposes that it should be. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, we have a number of amendments in this group which fit very well with what has just been said by the noble Baroness, Lady Hamwee. I hope she will take it from that that we support broadly where she is coming from and hope to extend it slightly in a couple of areas.

Amendment 130—which is a DPRRC recommendation —affects Schedule 8. This was touched on in earlier groups and I will not delay the Committee by repeating the points now. They will be covered in the Minister’s response, which we confidently expect to be that this is under consideration, that a further air travel bulletin will be emerging shortly and that we should not worry too much about it at this stage. However, I am prepared to argue for it if necessary, and if the noble Lord challenges me I will do so.

The government amendments have not yet been introduced. However, in anticipation, we welcome them. They take out one or two of the points I will be making later. Once they have been introduced and looked at we will be able to rely on them. They cover a particular gap in the Bill in terms of the need to rely on a function conferred on a person by rule of law as well as simply by an enactment.

Amendment 133ZA is a probing amendment to quite an important clause that we would like to see retained. The reason for putting down the amendment in this form is to probe further into what is going on here. The terms of Clause 39 apply only,

“in relation to the processing of personal data for a law enforcement purpose”,

and would be conferred by rule of law as well. It repeats other areas that cover,

“archiving purposes in the public interest … scientific or historical research purposes, or … statistical purposes”.

I am not clear why these are linked to law enforcement purposes. Why would archiving be necessary for such a purpose? Perhaps the Minister can respond on that particular point. It is a narrow one, but I should like to know the answer.

Clause 33(5) deals with processing without the consent of the data subject, of which this is a part, and makes the point that it is permissible only for the purposes listed in Schedule 8. However, Clause 33(6) permits amendment to this derogation, so purposes could be added or indeed lost. There is of course a wide research exception in Schedule 8 with no specific safeguards. So it is important to understand why the framing of this is so open-ended, and I would be grateful for a response.

When we check the GDPR, the antecedent impulse for this is present in the wording of article 4(3). That goes on to say that the processing has to be subject to appropriate safeguards for the rights and freedoms of data subjects, yet we do not see these in either Clause 33 or Clause 39—or indeed at any point in between. Why is that? Is there a reason why it should not be part of the processing conditions? If so, can we have an example of why that would be necessary?

Amendment 133ZC relates to quite an important area, which is a derogation to allow personal data to be processed for different law enforcement purposes other than when it is initially processed, as long as it is a lawful purpose and is proportionate and necessary. That is quite open-ended, so it would be helpful if in his response the Minister could speculate a little about where the boundaries there exist. We have no objection to the provision in principle, but it is important to ensure that the scope is not so impossibly broad that anything can be hung on one particular issue. If that was coming forward, I am sure that it would be possible to do that. The scope seems to be too broad to be considered proportionate—which, as I said, is what the directive requires.

Amendment 133ZE builds on Amendment 133ZD to which the noble Baroness, Lady Hamwee, has already spoken. This is about what happens to data that is found to be inaccurate and the requirement that it should not be disclosed for any law enforcement purpose. This is a slightly different wording and I am looking for confirmation that the Government do not see a difference in the two possibilities. The original requirement was that data should not be “transmitted or made available” if it is inaccurate, but this would say that it should not be “disclosed”, which is an active rather than a passive expression of that—but is it different? The amendment tries to broaden the provision so that reasonable steps are taken to make sure that data is not made available for any purpose, which I think would be a more satisfactory approach.

I turn to Amendment 133ZG. I think I am right in saying that the GDPR envisages that inaccurate personal data should be corrected or deleted at the initiative of the controller, but that provision does not appear in the Bill. I wonder whether there is an explanation for that. If there is not, who will be responsible for correcting data that is found to be inaccurate or needs to be corrected or deleted?

Finally in this group, Amendment 133ZH relates to Clause 37, which requires that personal data should be kept for no longer than necessary. To comply with this principle, the data controller should establish time limits for erasure or for a periodic review. The current drafting seems to suggest that all that is required to be done by controllers is that from time to time they should review their procedures; it does not say that they have to do it. Perhaps the Minister could respond on this point. Surely what we want here is a clear requirement for both reviews and action. You can review the data, but if it is no longer required and should be deleted, there should be an appropriate follow-up. Time limits are not enough: you do it within the time limits but then you have to follow up. We do not think it currently makes sense. I look forward to the Minister’s responses.

--- Later in debate ---

[Lord Stevenson of Balmacara]

I am very grateful for the late intelligence that came across on the point about withdrawal. The issue was not that there is not sufficient power in the Bill—there is, we accept that—but just that there seems to be an unfortunate separation between the need periodically to review the length of time for which the data is held and the fact that, when a decision has been arrived at, the data is no longer required. There seems to be no prod to remove the data that should be removed. I understand the point made earlier by the Minister that some data, although wrong, should be kept, but that was not the point I was making. However, I think we can deal with this outside the Chamber.

[Baroness Hamwee]

My Lords, without wanting to appear ungrateful, I am very troubled by some of what we have heard about the incorporation of language used in the law enforcement directive and in the modernised 108. Simply to reflect that language, incorporate it into our primary legislation and cause confusion thereby does not seem to be a very good way to proceed. My questions about the difference between “strictly necessary” and “necessary” illustrate this well. To be told that “necessary” is a lower threshold than “strictly necessary”—which is certainly how I would read it—calls into question how necessary something which is necessary really is.

We will have to come back to this—it may be something that we can discuss outside the Chamber before Report. I wonder whether I should threaten to unleash my noble friend Lord Lester of Herne Hill—that might be enough to lead us to a resolution, but I have not consulted him yet. However, I am troubled, because we are in danger of doing a disservice to the application of these important provisions. For the moment, of course, I beg leave to withdraw the amendment.

Amendment 129G withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

133ZL: Clause 42, page 24, line 12, at end insert—
“( ) The controller must without undue delay inform each data subject that he is (or, as the case may be, is again) a data subject.”

[Baroness Hamwee]

My Lords, Amendment 133ZL is an amendment to Clause 42. Clause 43 deals with a data subject’s right of access. The onus is on the data subject to ask whether their personal data is being processed. If so, they have a right of access, although there are provisions about restrictions and the controller must tell them.

We have already touched on how you know that you are a data subject. The amendment would place an obligation on the controller to tell you. I appreciate that there would be considerable practical considerations. However, in a different context, time and again during the passage of the Bill we have heard noble Lords express surprise about what organisations know about each of us. It is irritating when it is a commercial organisation; it is a different matter when it is a law enforcement body.

Amendment 133ZM is a way of asking why the information to be given to a data subject under Clause 42(2) is limited to “specific cases”. Is this is a bit of the narrative style that I referred to earlier? Restrictions are set out later in the clause. What are the specific cases to which the controller’s duties are restricted? Should there be a cross-reference somewhere? The term suggests something more—or maybe something less—than the clause provides.

Amendment 133ZN takes us to Clause 42(4), which refers to the data subject’s “fundamental rights”— this phrase is used also in a number of other clauses. My amendment would insert references to the Human Rights Act and the European Charter of Fundamental Rights, seeking not to reopen the argument about the retention of the charter but to probe how fundamental rights are identified in UK law. It is not an expression that I recognise other than as a narrative term. This is fundamental—if noble Lords will forgive the pun—to my questioning and the workability of all this.

On Amendment 133ZP, the same subsection refers to an “official” inquiry. I know what that means in common sense—in human speak, if you like—but what does it mean in legislative speak?

Amendment 133ZQ is a cross-reference. I queried what was in the clause and have had exchanges with officials about it. I thought that the Minister’s name would be added to the amendment. I would have been very happy if the correction had been made quietly, but apparently that was not possible. So the drafting is not mine, but it corrects a mis-drafting—would that be a gentle term for it? At any rate, that is what the amendment is about. I beg to move.

[Lord Kennedy of Southwark]

My Lords, the five amendments in this group are all in the name of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. I should say at the start that I am not convinced by Amendment 133ZL and I look forward to the response of the Government. I am not sure that it is proportionate in respect of law enforcement processing. I had concerns about it before the debate and I have heard nothing to change my mind.

Amendment 133ZM widens the scope of the provisions and I am content with that. I am interested to hear from the Government why the three words to be deleted are so important: perhaps they can convince me of the merits of having them in the Bill.

Amendment 133ZN is proportionate and I happy to support it. I do not support Amendment 133ZP and, again, I have heard nothing yet to convince me otherwise. I await a response from the Government. Amendment 133ZQ seems proportionate to me in respect of the data controller being able to record reasons to restrict provision of information to a data subject and the reasons for refusing requests.

--- Later in debate ---

[Baroness Hamwee]

My Lords, the noble Lord, Lord Kennedy, need not have been apologetic: it is perfectly fair to make the point that he did not think the amendment was proportionate. I will not claim the credit for Amendment 133ZQ because it is not my drafting, but much more importantly, yes, fundamental rights should be interpreted by the UK courts, but on what basis? It really is a matter of “New readers start here” with that, and the same applies to “official inquiry”: the very fact that there is an Inquiries Act was in my mind in asking what an official inquiry is. It is all the same argument—the same discussion, would be a better way of putting it—as on earlier groups. I said then that I was troubled; I am troubled in this connection. I think I made it clear that I was not trying to reopen the question of the European Charter of Fundamental Rights now; there will be other occasions to do that. I beg leave to withdraw the amendment.

Amendment 133ZL withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

133ZQ: Clause 46, page 27, line 45, leave out “(4)” and insert “(1)(b)(i)”

--- Later in debate ---

Moved by

[Baroness Hamwee]

134A: Clause 48, page 28, line 28, leave out paragraph (b)

[Baroness Hamwee]

My Lords, we debated automated decision-making under Part 2 on Monday. Clause 48 provides for automated decision-making in the case of law enforcement. No doubt we will return to the issues raised on Monday in this connection, but for now, Clause 48(1) provides that a “qualifying significant decision” must be,

“required or authorised by law”.

This is perhaps a slightly frivolous probe, but may a controller take a decision that is not required or authorised by law? If it is not authorised, how is the data subject protected?

Amendment 135 refers to not engaging the rights of the data subject under the Human Rights Act. Again, we had a debate on this on Monday and it is a subject to which we may return. I simply ask: does the Minister have anything to add to what her noble friend Lord Ashton of Hyde had to say then? He told us that human rights are always engaged—indeed they are—and that the amendment therefore did not really work but that there are, as he said in col. 1871, “appropriate safeguards”. Are the Government satisfied that the balance between processing and protection is the right one? As I say, I am sure we will come back to this issue.

Amendment 135A is to Clause 48(2), which deals with decisions based solely on automated processing. Article 11 of the directive, which I believe is the basis for this, provides for automated processing, including profiling. Profiling is a defined term, so I merely want to check that there is no significance in omitting the reference to it. I doubt there is but the language is reproduced exactly elsewhere, so this is a simple check.

Clause 48(2)(a) provides that notification of a decision must be given “as soon as … practicable”. Amendment 135B would limit this to a maximum of 72 hours. I do not want to describe what is in the Bill as open-ended but I think the Minister would accept that it is less certain than it could be, which is a pity as the requirement under this clause to notify the right to ask for reconsideration is important. I note that at another point close to this, the data subject has an exact limit of 21 days. That may not be practicable for the data subject but perhaps the Minister can confirm whether that means within 21 days of actual receipt, not 21 days of delivery, as the means of serving that notification.

Amendment 136A would insert a new provision. We have been considering some form of independent oversight of automated decision-making. That would not be quite right because we have the commissioner, who is independent, but the amendment proposes more assistance and advice in this connection and the publication of reports on the subject.

Amendment 137 proposes a new clause. We debated a more elaborate amendment on the right to information about decisions based on algorithmic profiling on Monday. The proposed new clause would allow the data subject to obtain an understanding of the reasoning underlying the processes, when the results of it are applied to him. The wording might seem familiar to noble Lords, which would show that they have read on in the Bill. The amendment would reproduce in the law enforcement part a right that is included in Clause 96 in Part 4, which deals with the intelligence services. If they can do it, why not law enforcement? I was quite surprised that they could do it and were expected to provide the underlying reasoning, but that is a good thing. I am not arguing that this would be a silver bullet for all the issues around algorithms but it would be significant. Perhaps it would be courteous and appropriate to say I understand that as regards the intelligence services exemptions, the UK is proposing one of the most advanced explanation rights in the world—tick.

Amendment 144 raises the human rights point again, in the context of the intelligence services’ automated decision-making. Amendments 145 and 146 are to ask the Government to justify decisions based solely on automated processing which significantly affects the data subject when it relates to a contract. Clause 94(2)(c) refers to,

“considering whether to enter into a contract with the data subject”,

and,

“with a view to entering into … a contract”,

with them. There must be a fine distinction between those two provisions but they are dealt with differently. These are all in Part 4, on the intelligence services. Finally, Amendment 146A is to ask whether the commissioner should have a role in the process, because there is a bit more scope for people doing their own thing in this part of the Bill than under Part 3. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, I support the amendments that have just been moved and spoken to by the noble Baroness, Lady Hamwee. We should perhaps have signed up to them but I do not think we had the time to do so. However, they all bear on important issues that need to be addressed and I look forward to hearing the responses from the Minister.

Our amendments in this group are also about automated processing but they attach to a slightly different arrangement. In Clause 92, on page 52, the right of access provisions are largely copied from earlier parts of the Bill and are extensive. Like the noble Baroness, Lady Hamwee, we appreciate that. The Government have moved a long way to try to reassure everyone that the intelligence services, as well as the defence services, are trying to operate in a manner that could be taken almost directly from the GDPR. While this may be gold-plating, it is a good way of making progress. Having said that, halfway down page 52 are two things that our amendments address. In Amendment 142C, we suggest that there should be a,

“right to object to automated-decision making”,

within automatic processing, because at the end of Clause 92(2) all the other rights are there but the one present in other parts of the Bill on the right to object is not. I wonder why it has been missed out. It would be interesting to hear from the Minister about that.

In Amendment 143B, we also wish to challenge why the fee has to be paid for this. The Government have tried hard to make an equality of approach right the way across but fees suddenly appear here, in a way which seems rather strange. It cannot be that the information services of Her Majesty’s Government are so starved of cash that they have to charge money to get their services completed for those who just want reasonable information, which should specifically be made available. It seems a double bind to have a situation where these rights and obligations are tantalisingly included in the Bill, but are then removed from reasonable access because of the costs that might be charged. I know that the Secretary of State would have to do it by regulations, which would be subject to further scrutiny, but perhaps this could be looked at again.

[Baroness Williams of Trafford]

My Lords, these amendments return us to the issue of automated decision-making, which we debated on Monday, albeit principally in the context of Part 2.

The noble Baroness, Lady Hamwee, has indicated that the purpose of Amendment 134A is to probe why Clause 48(1)(b) is required. Clauses 47 and 48 should be read together. Clause 47 essentially operates to prohibit the controller making a significant decision based solely on automated processing, unless such a decision is required or authorised by law. Where automated decision-making is authorised or required by law, Clause 48 permits the controller to make a qualifying significant decision, subject to the specified safeguards.

A significant decision based solely on automated processing which is not required or authorised by law is an unlawful decision and therefore null and void. That being the case, we should not seek to legitimise an unlawful decision by conferring a right on a data subject to request that such a decision be reconsidered. Should such a decision be made contrary to Clause 47(1), the proper way to deal with it is through enforcement action by the Information Commissioner, not through the provisions of Clause 48.

Amendments 135 and 144 seek to prevent any decision being taken on the basis of automated decision-making where the decision would engage the rights of the data subject under the Human Rights Act. As my noble friend Lord Ashton indicated on Monday when the Committee debated Amendment 75, which was framed in similar terms, such a restriction would arguably wholly negate the provisions in respect of automated decision-making as it would be possible to argue that any decision based on automated decision-making would, at the very least, engage the data subject’s right to respect for privacy under Article 8 of the European Convention on Human Rights.

At the same time, the unintended consequences of this could be very damaging. For example, any intelligence work by the intelligence services relating to an individual would almost certainly engage the right to respect for private life. The effect of the amendment on Part 4 would therefore be to prevent the intelligence services taking any further action based on automated processing, even if that further action was necessary, proportionate, authorised under the law and fully compliant with the Human Rights Act. Where a decision will have legal or similarly significant effects for a data subject, data controllers will be required to notify data subjects to ensure that they can seek the remaking of that decision with human intervention. We believe that this affords sufficient safeguards.

Turning to Amendment 135A, I can assure the noble Baroness, Lady Hamwee, that automated processing does indeed include profiling. This is clear from the definition of profiling in Clause 31 which refers to,

“any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to an individual”.

Given that, I do not believe more is needed, but I confirm that there is no significance in omitting the word “profiling”. We did not include a reference to profiling as an example of automated decision-making on the grounds that it is just that, an example, and therefore an express reference to including profiling would add nothing.

Amendment 135B would require controllers to notify data subjects within 72 hours where a qualifying significant decision has been made based solely on automated processing. While it is appropriate elsewhere in the Bill to require controllers to report data breaches to the Information Commissioner, where feasible, within 72 hours, we consider that the existing requirement to notify data subjects of what is a lawful qualifying significant decision as soon as reasonably practicable establishes the need for prompt notification while recognising that there needs to be some flexibility to reflect the operational environment.

Amendment 136A seeks to require the Information Commissioner to appoint an independent person to oversee the operation of automated decision-making under Part 3. I am unpersuaded of the case for this amendment. The Information Commissioner is, of course, already an independent regulator with express statutory duties to, among other things, monitor and enforce the provisions in Part 3, so it is unclear to me why the commissioner should be obliged to, in effect, subcontract her functions in so far as they relate to automated decision-making. Such processing is subject to the commissioner’s oversight functions as much as any other processing, so I do not see why we need to single it out for special treatment. If the argument is that automated processing can have a more acute impact on data subjects than any other forms of processing, then it is open to the commissioner to reflect this in how she undertakes her regulatory functions and to monitor compliance with Clauses 47 and 48 more closely than other aspects of Part 3, but this should be left to the good judgment of the commissioner rather than adding a new layer of regulation.

The noble Baroness asked whether it is 21 days from receipt of notification or another time. Clause 48(2)(b) makes it clear that it is 21 days from receipt.

I have some sympathy for Amendment 137, which requires controllers subject to Part 3, on request, to provide data subjects with the reasons behind the processing of their personal data. I agree that data subjects should, in general, have the right to information about decision-making which affects them, whether or not that decision-making derives from automated processing. However, this is not straightforward. For example, as with the rights to information under Clauses 42 and 43, this cannot be an absolute right otherwise we risk compromising ongoing criminal investigations. If the noble Baroness will agree not to move Amendment 137, I undertake to consider the matter further ahead of Report.

Amendments 142C and 143B in the name of the noble Lord, Lord Stevenson, seek to confer a new duty on controllers to inform data subjects of their right to intervene in automated decision-making. I believe the Bill already effectively provides for this. Clause 95(3) already places a duty on a controller to notify a data subject that a decision about them based solely on automated processing has been made.

Amendments 145 and 146 seek to strike out the provisions in Part 4 that enable automated decision-making in relation to the consideration of contracts. The briefing issued by Liberty suggested that there was no like provision under the GDPR, but recital 71 to the GDPR expressly refers to processing,

“necessary for the entering or performance of a contract between the data subject and a controller”,

as one example of automated processing which is allowed when authorised by law. Moreover, we envisage the intelligence services making use of this provision—for example, considering whether to enter into a contract may initially require a national security assessment whereby an individual’s name is run through a computer program to determine potential threats.

Finally, Amendment 146A would place a duty on the intelligence services to inform the Information Commissioner of the outcome of their consideration of a request by a data subject to review a decision based solely on automated processing. We are not persuaded that a routine notification of this kind is necessary. The Information Commissioner has a general function in relation to the monitoring and enforcement of Part 4 and in pursuance of that function can seek necessary information from the intelligence services, including in respect of automated processing.

I hope again that my detailed explanation in response to these amendments has satisfied noble Lords, and as I have indicated, I am ready to consider Amendment 137 further ahead of Report. I hope that on that note, the noble Baroness will withdraw the amendment.

[Baroness Hamwee]

My Lords, I am grateful for the long response and for the Minister agreeing to consider Amendment 137. As regards oversight of automated processing, which is not quite where I would be coming to as something that was suggested to us, it would be fair to say that the commissioner has a resource issue covering all these developments. Maybe it is something that we will think about further in order to approach it from a different direction, perhaps by requiring some regular reporting about how the development of automated processing is controlled and affecting data subjects. I will consider that, but for the moment I beg leave to withdraw the amendment.

Amendment 134A withdrawn.

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Moved by

[Baroness Hamwee]

137A: Clause 56, page 32, line 30, at end insert—
“( ) Notwithstanding any determination under subsection (2), joint controllers are each liable for any failure to comply with the obligations of a controller under this Part.”

--- Later in debate ---

[Baroness Hamwee]

My Lords, Clause 56 anticipates that competent law enforcement authorities may work together, and designates them as “joint controllers”. Clause 56(2) allows them to “determine their respective responsibilities”, although there is an exception when the responsibility is,

“determined under or by virtue of an enactment”.

Amendment 137A would, I suggest, take us a step further by providing that, in any event, if there is a failure to comply with a controller’s statutory obligations, each joint controller is liable—or does this not need to be spelled out? I beg to move.

[Lord Young of Cookham]

My Lords, these are narrow but important amendments relating to the liability of joint controllers. I agree with the noble Baroness that there should be clarity as to where liability rests when a controller contravenes the provisions of the Bill. The concept of joint data controllers is not new; indeed, it is recognised in the Data Protection Act 1998. In a similar vein, Clause 56 makes provision for joint controllers under Part 3—the shared responsibility for the police national computer by chief officers is a case in point. Upholding the rights of data subjects is dependent on the clear understanding of responsibilities. Clause 56 requires joint controllers to determine transparently their respective responsibilities so that data subjects know who to look to in order to access their rights or to seek redress. There should be no ambiguity as to who is responsible for compliance with the provisions of Part 3.

The issue of liability is dealt with elsewhere in the Bill. For example, Clause 160 provides that an individual has the right to compensation from a controller if they suffer damage because of a contravention of this legislation. Subsection (4) makes specific provision for joint controllers: it provides that liability for damages flows from the legal responsibility for compliance as determined by an arrangement made under Clause 56. These types of arrangement already exist, and this is as it should be. What matters to the data subject is that the legal position in relation to joint controllers is clear, and Clause 160, read with Clause 56, provides such clarity. I also refer the noble Baroness to Clauses 145, 149 and 158, which make like provision in respect of enforcement notices, penalty notices and compliance orders.

The government amendments in this group, which are technical, address much the same point. As I have indicated, the Bill adopts the principle that a court order in relation to controllers operating under a joint controller arrangement may be made only against the controller responsible for compliance with the relevant provision of data protection legislation. That has to be right, whereas under the noble Baroness’s amendment, they would all be liable, whether or not they were responsible for compliance with the relevant provision. Amendments 143, 147 and 148 are needed to ensure that the principle is carried through when joint controllers are operating under Clause 102 and that the liability of such controllers is clear. Providing such clarity is in everyone’s interests, including data subjects.

I hope I have been able to satisfy the noble Baroness that the position on the liability of joint controllers is clear and that she will be content to withdraw her amendment and support the government amendments.

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[Baroness Hamwee]

My Lords, I am certainly happy with the latter. I simply observe that in other walks of life when people act jointly, each is often responsible for what the other does, but of course I beg leave to withdraw the amendment.

Amendment 137A withdrawn.

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Moved by

[Baroness Hamwee]

137B: Clause 59, page 34, line 13, leave out “where applicable,”

[Baroness Hamwee]

My Lords, under Clause 59, the controller must record certain information, including, according to subsection (2)(g),

“where applicable, details of the use of profiling”.

The purpose of Amendment 137B is to ask whether, if profiling is used, this is not applicable. My amendment would delete the words, but the Minister will understand that I am probing.

I am afraid this is quite a big group of amendments. Clause 62 provides for data protection impact assessments when there is a “high risk” to “rights and freedoms”. In assessing the risk, the controller,

“must take into account the nature, scope, context and purposes of the processing”.

Amendment 137C would insert a reference to,

“new technologies, mechanisms and procedures”,

picking up wording which is in articles 27 and 28 of the law enforcement directive.

Clause 63 requires consultation with the commissioner where there is a “high risk” to “rights and freedoms”. Article 28(3) of the directive allows for the “supervisory authority”—the commissioner, in our case—to,

“establish a list of the processing operations which are to be subject to prior consultation”.

Amendment 137D would allow the commissioner to “specify other conditions” where consultation is required. I am not sure I would defend the approach of having regulations under a negative resolution. The amendment was tabled following a certain amount of toing and froing—aka consultation with me—because my original amendment did not quite work, or at any rate I was not clear enough about it. I was not at Westminster at the time and I think I did not take in properly over the phone what was being proposed. I am sure the Minister will not take me too much to task for that, but focus instead on the nub of this.

Under Clause 63, the commissioner is required to give advice to the controller and the processor when she thinks that the intended processing would infringe Part 3. Amendment 137E set outs what advice would be included “to mitigate the risk” and would be a reminder of the commissioner’s powers in the event of non-compliance. The amendment builds on rather fuller provisions in article 28 of the directive, which provides for the use of powers.

Amendment 137F would amend Clause 64, which deals with the security of processing and refers to,

“appropriate measures … to ensure a level of security appropriate to the risks”.

The amendment proposes what “appropriate measures” might be, in particular whether cost is a criterion. Article 29(1) seems to envisage this—are we envisaging it in the Bill?

As for Amendment 137G, there is a duty in Clause 66 to inform the data subject when there is a breach, but not when the controller has implemented protection measures. In seeking to change “has” to “had” implemented, I just seek confirmation that the measures in question were applied before the breach. One might read the clause as meaning that, subsequently, steps had been taken and protection measures implemented. That will be good for the future, but would not address the specific breach.

On Amendment 137H, Clause 66(7) gives a wide exemption, setting out the reasons for restricting the provision of information to a data subject. I assume from the words “so long as necessary” that, once a specific security threat has passed or a court case is over, the right to that information would revive. Can the Minister confirm this? Again, I am not sure what the role of the commissioner would be here.

On Amendment 137J, Clause 69 sets out the tasks of the data protection officer. Chapter 5 of this part deals with transfers to third countries. By requiring the updating of controllers on the development of standards of third countries, my amendment suggests that the data protection officer should keep on top of international issues.

Amendment 137K is an amendment to Clause 71 in Chapter 5, on the principles for the transfer of data to a third country or international organisation. It would insert an explicit requirement that the rights of the data subject be protected. Article 44 provides:

“All provisions in this Chapter shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined”.


That is broad and overarching. My amendment probes how that protection is covered: is it in the detail of the subsequent clauses? It is spelled out in the article; does that imply that the clauses might not always properly provide protection if we do not spell it out in the same way, given the reflections that the Bill provides?

On Amendments 137L and 137M, authorisation under Clause 71(1)(b) from another member state from which the data originated is not required if the transfer is necessary for the prevention of a threat to the essential interests of a member state and authorisation cannot be obtained in good time. The amendments probe whether “essential interests” are more than law enforcement purposes—the first condition for transfer. Will the interests be clear? Is there a confusing element of subjectivity here? The person who wants the data might see things quite differently from the person who is being asked to transfer it. It is open to us to provide higher safeguards, which is what I am working towards. “Obtaining in good time” perhaps suggests a slightly more relaxed attitude than the subject matter should demand. I would substitute a reference to urgency.

On Amendment 137N—noble Lords will be relieved to know that I am on the last of our amendments in this group—there can be a transfer on the basis of special circumstances under Clause 74. I welcome the fact that, in some cases, the controller can refuse a transfer because fundamental rights and freedoms override the public interest in the transfer. Presumably, the controller’s determination must be reasonable. This seems to give some discretion to the commissioner; I wonder whether the commissioner might give guidance rather than leaving it entirely up to the controller. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, we have one amendment in this group, and I will speak to it. It affects what appears to be a lacuna—if that is not too technical a term for Hansard—in relation to the storage and retention of data collected by local police forces under the automatic number plate recognition system. Each local police force has an ANPR system. There are thousands of cameras, which we are all too aware of. Anyone who drives past one and has a picture of their number plate taken has a momentary shudder in case they are doing something wrong. When you add them all together, it is one of the biggest surveillance systems in the world—probably the world’s biggest non-military system—and it is growing every day. At the moment, there are probably about 1 billion shots of people cars in circulation. It is of course personal data, as it tracks people’s journeys, or can be read to do so.

There are two problems. First, the ANPR system has grown and grown but does not have proper governance or structure. Attention needs to be paid to that. This is not the Bill for that, but the noble Baroness might wish to take that point back with her. Secondly, an FOI request revealed in 2015 that the police had no systematic retention or disposal policy; they simply just kept the data because it might come in useful at some time. I do not think that works under the Data Protection Act 1998 and does not seem appropriate, given the way the Bill is framed.

In case there is any doubt whether those systems fall within the scope of the Act or whether there should be a change of policy, we have tabled the amendment to probe what is going on. There has been a recent change—I hope that the noble Baroness will update us about it—and several billion deletions, but there is still a question about the appropriate retention system. Our amendment is an attempt to move forward on that issue.

The problem is that the ANPR is not covered anywhere in statute. Despite the fact that it is very large, it is simply run. The Home Office does not see it as an espionage system—that is fair enough—so it is not covered in the Investigatory Powers Act. There is a case, however, for using the Bill to get this issue back into scope. The proposal here is simple. These particular words need not be used, but I hope the noble Baroness will accept that something should be done. We propose that the approach should be in accordance with the arrangements currently adopted in surveillance systems elsewhere.

[Baroness Williams of Trafford]

My Lords, this quite extensive group of amendments relates to the obligations on controllers and processors and the transfer of personal data to third countries. As the noble Baroness, Lady Hamwee, explained, Amendment 137B seeks to probe the necessity for the words “where applicable” in Clause 59(2)(g), which places a duty on a controller to record details of the use of profiling in the course of processing. This wording is transposed directly from Article 24 of the LED—and. to be clear, we are not excluding types of profiling from being recorded. Rather, the clause provides that all profiling is recorded where profiling has taken place. The wording acknowledges that some processing may not involve profiling.

Amendment 137C seeks to add a definition of the word “nature” as used in Clause 62(4). References to the,

“nature, scope, context, and purposes of the processing”,

are found throughout the LED and we have faithfully transposed this. We accept that the nature of the processing does include the aspects set out in the noble Baroness’s amendment, but we do not believe it necessary to set that out on the face of the Bill, and there is a danger that doing so in these terms could unwittingly narrow the scope of this provision. I might add that the Information Commissioner’s Office already publishes guidance on conducting privacy impact assessments and will be issuing further guidance on issues related to the Bill in due course.

Amendment 137D to Clause 63 would confer on the Information Commissioner a power to make regulations specifying further circumstances in which a controller must consult the commissioner before undertaking processing activities. Currently the requirement is for controllers to consult the commissioner when a data protection impact assessment indicates that processing would pose a high risk to the rights and freedoms of data subjects. Clause 63 reflects the provisions in Article 28 of the LED and sets an appropriate threshold for mandatory consultation with the Information Commissioner. This is not to preclude consultation in other cases, but I am unpersuaded that we should go down the rather unusual road of conferring regulation-making powers on the commissioner. Instead, we should leave this to the co-operative relationship we expect to see between the commissioner and controllers and, if appropriate, to any guidance issued by the commissioner.

Amendment 137E seeks to specify the content of the written advice which the Information Commissioner must provide to a controller in the event that she considers that a proposed processing operation would contravene the provisions of Part 3. I do not disagree with the point that the amendment is seeking to make—indeed, it echoes some of what is said at paragraph 209 of the Explanatory Notes—but we believe that we can sensibly leave it to the good judgment of the commissioner to determine on a case-by-case basis what needs to be covered in her advice.

Amendment 137F would expressly require controllers to account for the cost of implementation when putting in place appropriate organisational and technical measures to keep data safe. I entirely agree with the spirit of this amendment; there needs to be a proportionate approach to data protection. However, I refer the noble Baroness to Clause 53(3), which already includes a provision to this effect. On Amendment 137G, we believe the use of the present tense is correct in Clause 66(3)(a) in that the implementation of the measures is ongoing and not set in the past.

Amendment 137H would require a controller to inform the commissioner when they have restricted the information available to data subjects in the event of a data breach. Clause 66(7) is one of four instances in Part 3 where a controller may restrict the rights of data subjects. I do not believe that there is a case for singling out this provision as one where a duty to report the exercise of the restriction should apply. If the commissioner wants information about the exercise of the power in Clause 66(7), she can ask for it.

Amendment 137J seeks to add to the role of data protection officers by requiring them to update the controller on relevant developments in the data protection standards of third countries. I do not deny that awareness of such standards by police forces and others is important for the purposes of the operation of the safeguards in Chapter 5 of Part 3. However, Clause 69 properly reflects the terms of the LED. It does not preclude data protection officers exercising other functions such as the one described in Amendment 137J.

Amendments 137K, 137L and 137M relate to Clause 71, which sets out the general principles for transfers of personal data to a third country or international organisation. The whole purpose of Chapter 5 of Part 3 is to provide safeguards where personal data is transferred across borders. Given that, I am not sure what Amendment 137K would add. Amendment 137L would narrow the circumstances in which onward transfers of personal data may take place with express authorisation from the originator of the data. In contrast, Amendment 137M, in seeking to remove Clause 71(5)(b), would expand those circumstances —which I am not sure is the noble Baroness’s intention. Subsection (5) is a direct transposition of article 35(2) of the LED, so we should remain faithful to its provisions. What constitutes the essential interests of a member state must be for the controller to determine in the circumstances of a particular case—but, here as elsewhere, they are open to challenge, including enforcement action by the commissioner if they were to abuse such provisions.

Amendment 137N would require a controller to pay due regard to any ICO guidance before coming to a decision under Clause 74(2), which relates to the transfer of data on the basis of special circumstances. The Bill already caters for this. Clause 119 places a duty on the commissioner to prepare a data-sharing code of practice and, under the general principles of public law, controllers will be required to consider the code—or for that matter any other guidance issued by the commissioner.

Finally, Amendment 137EA in the name of the noble Lord, Lord Kennedy, and articulated by the noble Lord, Lord Stevenson, seeks to set in statute the retention period for personal data derived from ANPR cameras. ANPR is an important tool used by the police and others for the prevention and detection of crime. I understand that the National Police Chiefs’ Council has recently changed its policy on the retention of ANPR records, reducing the retention period from two years to 12 months. The new policy requires all data not related to a specific case to be deleted after 12 months. This will be reflected in revised national ANPR standards. We know that the Information Commissioner had concerns about the retention of ANPR records and we welcome the decision by the NPCC in this regard.

Given this, I have no difficulty with the spirit of the noble Lord’s amendment, but the detail is too prescriptive and we are not persuaded that we should be writing into the Bill the retention period for one category of personal data processed by competent authorities. The amendment is unduly prescriptive as it takes no account of the fact that there will be operational circumstances where the data needs to be retained for longer than 12 months—in particular, where it is necessary to do so for investigative or evidential purposes.

More generally, I remind the noble Lord that the fifth data protection principle—the requirement that personal data be kept no longer than is necessary—will regulate the retention policies of controllers for all classes of personal data. In addition, Clause 37(2) requires controllers to undertake a periodic review of the need for the continued retention of data. Given these provisions, I am not persuaded that we should single out ANPR-related data for special treatment on the face of the Bill.

I apologise again for the extensive explanation of the amendments, and I hope that noble Lords will be happy not to press them.

[Baroness Hamwee]

Certainly. I feel that I ought perhaps to apologise to the House for the speed at which we have been going; it has caused a bit of a flurry. I know that I have been quite telegraphic in speaking to the amendments. I have possibly been too telegraphic, but I will read the detail of the response, and beg leave to withdraw my amendment.

Amendment 137B withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

137R: Clause 84, page 49, line 15, after “conditions” insert “, other than a condition which is also a condition in Schedule 9,”

[Baroness Hamwee]

My Lords, sensitive processing requires meeting at least one condition from the menu in Schedule 9 and one in Schedule 10. This could be achieved, for instance, because the processing is necessary to protect someone’s vital interests under Schedule 9, and for the same reason under Schedule 10 when consent cannot be given. I wondered whether the repetition amounted to there being only one condition to be met, rather than two or perhaps one and a half—hence Amendment 137R.

Amendment 138A is another amendment suggesting that the Secretary of State’s regulation-making power is too wide under the Bill. In our view, the Secretary of State should be able to add conditions—in other words, protections—but not vary or omit them. That is a thread that runs through the whole of the Bill.

Amendments 139A and 139B probe the condition in Schedule 9 that processing is necessary for the purposes of legitimate interests pursued by the controller or a third party to whom the data is disclosed. Again, “legitimate interest” made me pause. It is made lawful by Clause 84 because it meets one of the lawfulness conditions, so there is a circularity here. The schedule then applies a condition to the condition—it is not lawful if it prejudices rights and freedoms or legitimate interests of data subjects, or rather is unwarranted because of prejudice to the rights and freedoms or interests of the data subject. Does that allow for the risk of prejudice? It struck me as quite a clumsy phrase—“unwarranted … because of prejudice”. I realise that the person who drafted it—I do not want to say “draftsman”—must have had some very particular thoughts in mind.

--- Later in debate ---

[Lord Young of Cookham]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining these amendments, which relate to intelligence services processing.

Amendment 137R would provide that sensitive processing for a condition under Schedule 10 was lawful when the condition was not also a condition in Schedule 9. Clause 84 provides that processing is lawful only as long as one of the conditions in Schedule 9 is met, and for sensitive processing one of the conditions in Schedule 10 must also be met. We consider that the two-stage consideration process when processing sensitive personal data is important, as it requires the controller to ensure that conditions in both schedules can be satisfied.

We accept that there is a degree of overlap between some of the conditions provided for in the schedules, but that is necessary. For example, consent is a condition for processing in both schedules, but that reflects the fact that consent may often be the most appropriate grounds for processing personal data, such as when people consent to their sensitive personal data being processed for medical purposes. That position is not new: Schedules 9 and 10 reflect the equivalent Schedules 2 and 3 to the Data Protection Act, both of which provide that consent is a condition for processing. The amendment adds nothing, but has the potential to reduce clarity and is likely to confuse by departing from a well-established, two-stage consideration process.

Amendment 138A, which the noble Baroness said was probing, would restrict the power of the Secretary of State to amend the conditions for sensitive processing set out in Schedule 10 to adding conditions rather than also varying or omitting. The issue was debated in the context of other parts of the Bill last Monday, and I repeat the commitment given by my noble friend to take account of the noble Baroness’s amendment as part of our consideration of the report from the Delegated Powers Committee.

Amendment 139A would remove as a condition for lawful processing under Schedule 9 processing that is necessary for the purposes of legitimate interests pursued by the data controller. In the case of the intelligence services, their legitimate interests are dictated by their statutory functions, including safeguarding national security and preventing and detecting serious crime. I should also add that this is a condition currently provided for in Schedule 2 to the Data Protection Act 1998, so it may not surprise noble Lords that we could not support an amendment that would preclude the intelligence services from processing personal data in pursuance of their vital functions.

Amendment 139B would preclude the processing of personal data by the intelligence agencies in pursuit of their legitimate interests—that is, their statutory functions—whenever the processing prejudices the rights and freedoms or legitimate interests of the data subjects, rather than the current drafting, which prevents such processing in circumstances where it would be unwarranted in any particular case because of prejudice to those rights or interests. This more restrictive approach would mean that the intelligence services would be unable to process personal data in pursuit of their legitimate interests—for example, safeguarding national security—since it could be argued that such processing is likely to engage such rights, in particular the right to respect private life. It would prevent data processing that was otherwise lawful, necessary and proportionate and carried out in full compliance with the Human Rights Act. The ECHR provides that some rights, including the right to private life, are qualified rights, recognising the fact that while a right may be engaged, lawful interference with that right should be permissible in certain circumstances. As a result, this amendment would appear to go further than that required by the ECHR as, whenever a right was engaged, interference would not be possible, even if such interference were lawful, proportionate and necessary. Again, the condition in the Bill replicates the existing condition in Schedule 2 to the Data Protection Act 1998. Given this, I am not aware of any powerful reasons for changing the existing established approach.

Amendment 139C would require the Information Commissioner to be informed when processing is necessary to protect the vital interests of the data subject in circumstances, for instance, where consent cannot be given by or on behalf of the data subject or the controller cannot reasonably be expected to obtain the consent of the data subject. Such processing is a condition for sensitive processing under Schedule 10 and it mirrors precisely the equivalent provisions in Schedule 3 to the Data Protection Act 1998. The amendment does not add to a data subject’s rights nor does it strengthen protections. The processing of personal data in these circumstances already attracts the protections and safeguards provided for in the Bill, including the general oversight of the Information Commissioner. It is therefore in our view unnecessary and, I might add, I am not aware that the Information Commissioner has asked for such a provision.

Amendment 139D—which the noble Baroness was gracious enough to concede that she had not thought through—would limit the processing of personal data in connection with legal proceedings related to an offence or alleged offence. This amendment would have an extremely damaging effect, preventing processing in connection with all other legal proceedings, such as court or tribunal proceedings under this Bill, complaints to the Investigatory Powers Tribunal about unlawful conduct by the intelligence services and assistance with other civil proceedings and inquiries. I am sure that this was not the noble Baroness’s intention. Furthermore, the wording at paragraph 5 of Schedule 10 reflects that currently provided for at paragraph 6 of Schedule 3 to the Data Protection Act, so the Bill goes no further than existing legislation in this respect.

Amendment 140A would remove from Schedule 10 processing personal data necessary for medical purposes as a condition for sensitive processing. However, this is relevant for the intelligence services for straightforward processing of medical data by medical professionals processing the services’ data. An example would be an intelligence service’s occupational health services carrying out fitness for work assessments and providing medical advice. In such circumstances the intelligence service would likely rely on this condition as a lawful basis for the processing. This is to the benefit of both the services as employers and to their employees.

Finally, Amendment 140B relates to Clause 85, which provides for the second data protection principle: the requirement that the purposes of processing be specified, explicit and not excessive. Subsection (4) of the clause provides that processing is to be regarded as compatible with the purpose for which it is collected if the processing is for purposes such as archiving and scientific or historical research. This amendment has the effect of rendering processing compatible only if it was for those specific purposes. I am sure that was not the noble Baroness’s intention given that the amendment would prevent the intelligence services processing personal data in pursuance of their vital statutory functions.

I hope that noble Lords will agree that in relation to these amendments the Bill, with possibly one exception, adopts the right approach. In relation to the possible exception, namely the delegated power in Clause 84, I have reiterated the commitment that we will take account of Amendment 138A when we respond to the report from the Delegated Powers Committee. I therefore ask the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, almost all these amendments were probing, except for Amendment 138A, which is how the noble Lord described it—it was distinctly not probing, so I am glad to have had his assurance in that regard. I commented on an earlier group about either the intelligence services or law enforcement—I cannot remember which—being advantaged as against other employers outside their immediate job. It seemed to me from the noble Lord’s comments about medical data that the services would be advantaged as against employers in completely different fields. He gave a long answer, and I am grateful for that; it of course deserves reading and I will do so. I thank him for this comments on Amendment 138A and beg leave to withdraw the amendment.

Amendment 137R withdrawn.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, I can be very brief. We had intended to withdraw Amendment 142A in this group but, unfortunately, we could not do so in time so I will not speak to it. To complete the icing on the cake, I have already spoken, rather stupidly, to Amendment 142D, and therefore I do not need to repeat myself. I simply await the noble Baroness’s response on it.

[Baroness Hamwee]

My Lords, I cannot be quite so quick but I will be fairly quick. Amendment 142B concerns Clause 91(3), which states:

“The controller is not required … to give a data subject information that the data subject already has”.


When I read that, I wondered how the controller would know that the data subject had the information. Therefore, my alternative wording would refer to information which the,

“controller has previously provided to the data subject”.

There can therefore be no doubt about that.

Amendment 143A concerns Clause 92, which deals with a right of access within a time limit of a month of the relevant day, as that is defined, or a longer period specified in regulations. What is anticipated here? Why is there the possibility of an extension? This cannot, I believe, be dealt with on a case-by-case basis as that would be completely impracticable and, I think, improper. Is it to see whether experience shows that it is a struggle to provide information within a month, and therefore a time limit of more than a month would benefit the controller, which at the same time would be likely to disbenefit the data subject, given the importance of the information? I hope the Minister can explain why this slightly curious power for the Secretary of State is included in the Bill.

Amendment 146B concerns Clause 97, which deals with the right to object to processing. I might have misunderstood this but I believe that the controller is obliged to comply only if he needs to be informed of the location of data. I do not know whether I have that right, so Amendment 146B proposes the wording,

“if its location is known to the data subject”,

so that the amendment flows through in terms of language, if not in sense. The second limb of Clause 97(2), whereby the data subject is told that the controller needs to know this, suggests this. That enables me to make the point that this puts quite a heavy burden on the data subject.

Amendment 148A concerns Clause 101. I, of course, support the requirement that the controller should implement measures to minimise the risks to rights and freedoms. However, I question the term “minimise”. The Bill is generally demanding in regard to this protection, so to root the requirement in the detail of the Bill the amendment would add,

“in accordance with this Act”.

As regards the test of whether a personal data breach seriously interferes with rights, I suggest this is not as high a threshold as that required by the term “significantly” proposed in Amendment 148B.

Following the noble Lord’s co-piloting analogy, I now say, “Over and out”.

[Baroness Williams of Trafford]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Stevenson, who negated the need for me to speak to Amendment 142A, so I shall not do so.

I turn straight to Amendment 142B. This requires the controller to provide a data subject with specified information about the processing of their personal data unless the controller has previously provided the data subject with that information. This contrasts with the existing approach in Clause 91(3), which provides that the controller is not required to give the data subject information that the data subject already has. Although similar, the shift in emphasis of this amendment could undermine Clause 91(2) by requiring the data controller to provide information directly to the data subject rather than to generally provide it. The effect of this could be to place an undue burden on the controller by preventing them providing such information generally, such as by means of their website.

Clause 92 provides for an individual to obtain confirmation from a controller of whether the controller is processing personal data concerning them and, if so, to be provided with that data and information relating to it. It sets out how an individual would request such information and places certain restrictions and obligations on meeting such requests.

Amendment 142C would add to the information that must be provided to a data subject. I do not believe this amendment is necessary. Clause 91 already provides that the general information that must be provided by a controller is information about how to exercise rights under Chapter 3 of Part 4 and I am sure that the Information Commissioner will put out further information about data subjects’ rights under each of the schemes covered by the Bill.

The purpose of Amendment 142D is to remove the ability of the intelligence services to charge a fee for providing information in response to a request by a data subject in any circumstances. The noble Lord, Lord Stevenson, or the noble Lord, Lord Kennedy—I am not quite sure who it was; I think it was the noble Lord, Lord Stevenson—has contrasted the position in Part 4 with that in Parts 2 and 3 of the Bill, whereby a controller may charge a fee only where the subject access request is manifestly unfounded or excessive. The fact remains, however, that the modernised Convention 108, on which Part 4 is based, continues to allow for the charging of a reasonable fee for subject access requests and we are retaining the power to specify a maximum fee, which currently stands at £10.

It is entirely right that the intelligence services should be required to respond to subject access requests, but we believe it is appropriate to retain the ability to charge because we do not want the intelligence services to be exposed to vexatious or frivolous requests that could impose a significant burden upon Part 4 controllers. As I have said, the modernised Convention 108 allows for the charging of a fee and there is a power in Clause 92 not just to place a cap on the amount of the fee but to provide that, in specified cases, no fee may be charged. I think this is the right approach and we should therefore retain Clause 92(3) and (4).

Amendment 143A would require every subject access request under Clause 92 to be fulfilled within one month and would remove the Secretary of State’s ability to extend the applicable time period to up to three months for any cases. The Delegated Powers and Regulatory Reform Committee has considered this Bill and made no comment on this regulation-making power. In our delegated powers memorandum we explained the need for this provision, and the equivalent power in Part 3 of the Bill, as follows:

“Meeting the default one month time limit for responding to subject access requests or to requests to rectify or erase personal data may, in some cases, prove to be challenging, particularly where the data controller holds a significant volume of data in relation to the data subject. A power to extend the applicable time period to up to three months will afford the flexibility to take into account the operational experience of police forces, the CPS, prisons and others in responding to requests from data subjects under the new regime”.


I hope the noble Baroness would agree that this is a prudent regulation-making power which affords us limited flexibility to take into account the operational experience of the intelligence services in operating under the new scheme.

[Baroness Hamwee]

Before the Minister moves on, I asked whether the power would be used on a case-by-case basis, which I thought was what she was saying, or as a result of overall experience—and then she went on to talk about overall experience. So is it the latter, extending to all cases in the light of experience gathered over a period?

[Baroness Williams of Trafford]

Yes, that is the point I made.

One of the rights afforded by Part 4 is that a data subject can require a controller not to process their personal data if that processing is an unwarranted interference with their interests or rights. If such a request is received, the controller may require further information in order to comply with the request. This includes information so as to be satisfied of the identity of the requesting individual or information so that they can locate the data in question.

Amendment 146B would require the requesting individual to provide information to help the controller locate the data in question only if the individual themselves knows where the data is located. I think we can agree that it is very unlikely that a data subject would know the exact location of data processed by a controller. As such, this change could make it more difficult for a controller to locate the data in question, as the data subject could refuse to provide any information to aid in the locating of their data. This could make it impossible for the controller to comply with the request and would in turn deprive the data subject of having their request fulfilled.

Chapter 4 of Part 4 deals with the obligations of the controller and processor. Controllers must consider the impact of any proposed processing on the rights of data subjects and implement appropriate measures to ensure those rights. In particular, Clause 101(2)(b) requires that risks to the rights and freedoms of data subjects be minimised. Amendment 148A would require that those risks be also dealt with in accordance with the Bill. If I understand the purpose of this amendment correctly and the noble Baroness’s intention is that the broader requirements of Part 4 should apply to any new type of processing, I can concur with the sentiments behind this amendment. However, it is not necessary to state this requirement in Clause 101; all processing by the intelligence services must be in accordance with the relevant provisions of the Bill.

Finally, Clause 106 requires that the controller notify the Information Commissioner if the controller becomes aware of a serious personal breach of data for which it is responsible. A data breach is deemed serious if it seriously interferes with the rights and freedoms of a data subject. Amendment 148B seeks to alter the level at which a data breach must be notified to the commissioner by lowering the threshold from a serious interference with the rights and freedoms of a data subject to a significant interference. The threshold is set purposely at serious so that the focus and resources of the controller and commissioner are spent on breaches above a reasonable threshold. We also draw the noble Baroness’s attention to the draft modernised Convention 108, which uses the phrase “seriously interfere”.

I am mindful that some noble Lords in this Chamber will be utterly perplexed by the subject matter to which we have been referring, so I hope that, with those words, the noble Lord will be sufficiently reassured and will withdraw his amendment.

Calais: Refugees

Baroness Hamwee Excerpts

Thursday 2nd November 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, a production at this year’s Edinburgh International Festival, a diorama about two young refugees from Afghanistan, depicted the police in northern France as huge aggressive birds. It was very powerful. We must thank the big-hearted people who still present a human face in Calais, as the noble Baroness said. They come back from helping refugees, appalled that the French police pepper spray babies’ nappies, as one example. They ask for donations not of tents but blankets, because they can be salvaged in the face of wanton, “nonsensical”—as one of the NGOs put it—violence by the police.

Reports by Refugee Rights, the Human Trafficking Foundation and others make very grim reading. I hope the Minister can tell us what discussions British authorities are having with the French regarding what I describe as an international humanitarian issue in northern France. Will she also update us on the Government’s thinking about whether there is any evidence—I stress evidence—of a pull factor bringing refugees to northern France seeking to reach the UK, as distinct from the many significant push factors? Indeed, is it in anyone’s interest not to apply Dublin III except those of the traffickers, other abusers and criminals?

In the case of children without adult guardians, not enabling their reunion with family—“family” being rather wider than just parents—in the UK is exposing them to considerable dangers. It is a matter of the rules and of ensuring they have access to advice about the rules through facilities and outreach work. The current situation is not “safeguarding”. To ask the same question in different words: why not safe and legal routes that are managed and regular?