Investigatory Powers Bill
Baroness Hamwee Excerpts(8 years, 2 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, my noble friend and I decided that I would be the one to confess how difficult I find it to understand Clause 151(5), so this is a probing amendment. I managed to make some progress in following the trail between different clauses and subsections this morning, but it involved something like copying and pasting chunks of wording in my head. I would therefore be grateful if the Minister could explain straightforwardly what follows from modifying a bulk acquisition warrant so that it no longer authorises or requires telecoms operators to do what is listed in Clause 146(5)(a). We are told to disregard Clause 151(2)(a), but the same criteria are then brought in by reference to Clause 146(1)(a) and Clause 146(2). I am sorry to be dim, but we decided that this probably justified seeking a short explanation.
I have complimented the draftsmen of the Bill—and I do not resile from that—as it is very helpful to have references to where definitions are to be found and so on, but given the complexity of the subject matter, this is a plea for the Bill to say, for example, “If a warrant is modified so that there is no requirement on a telecoms operator, then, in the case of renewal, the following”. That would have caused slightly less of a scrambled brain. I beg to move.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, as the noble Baroness has explained, Amendment 210ZA relates to the modification of a bulk acquisition warrant for the purpose of allowing examination of material after acquisition has ceased. Here, we come back to the issue that we debated earlier in relation to Amendments 201ZC and 217C, which covered bulk interception and bulk equipment interference warrants. The amendment would remove important technical provisions from the Bill—a point that I made in that earlier debate.
The Bill enables a bulk acquisition warrant to be modified such that it no longer authorises the acquisition of any material but continues to authorise the selection of material for examination. The circumstances catered for here are limited to a situation where it may no longer be necessary or possible to continue the collection of data, such as where a communications service provider goes out of business, but the data collected up to that point under a warrant remain pertinent. In circumstances such as those, it may continue to be necessary and proportionate to examine data that have already been collected under that warrant.
Clause 151(5), which the amendment would remove, simply clarifies that a warrant that has been modified in that way remains a valid bulk warrant if the Secretary of State considers that examination of the acquired data remains necessary and it is approved by a judicial commissioner. That is necessary because Clause 146(5) states that one of the conditions of the warrant is that its main purpose is to acquire data. But, of course, a warrant that has been modified in the manner I have described will no longer meet that condition because it will no longer authorise the collection of data.
I hope that that explanation clarifies any uncertainty in the noble Baroness’s mind and that she will agree that these provisions are necessary.
Baroness Hamwee
My Lords, that is extremely helpful, and I got an example without asking for it. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendment 231ZE. These amendments are tabled in my name and that of my noble friend Lord Paddick. They are both probing amendments.
Clause 199 provides for time limits on certain examinations. I accept that the first of our amendments is technically not a good one—but it is a probing amendment. It would take out the subsection that states that the “permitted period”—I do not think I need for this purpose to spell out what it is—
“begins when the head of the intelligence service first forms”,
certain beliefs. My noble friend and I were intrigued as to how it could be established and recorded that someone had formed a belief—and, indeed, had first formed a belief. I am not sure about “first formed”, because once a belief is formed, it is established, so it is not going to be formed a second time. But that is not the question, really. We felt that there was a danger that acknowledging the formation of the belief, which triggers the start of the period, could be delayed so that the period itself did not begin to run. So it is a question of safeguarding.
Amendment 231ZE would reduce the time before the permitted period comes to an end. It would make it one month rather than three months. The permitted period is the period in which the head of the intelligence service has to take certain steps—having, in effect, discovered that information which has been obtained includes data relating to individuals who are not, in fact, of interest to the service. So, overall, a good safeguarding clause would properly ensure that information which is not needed is dealt with in an appropriate way. Our concerns are that, having got as far as acknowledging the need for all of this, there are a couple of points at which the arrangements might not be applied as rigorously as one would expect. I beg to move.
Lord Keen of Elie
My Lords, Clause 199 explains the process of, and sets the time limits for, the initial examination of a dataset. The noble Baroness, Lady Hamwee, has explained the purpose of Amendments 231ZD and 231ZC, and I am obliged to her for indicating that these are probing amendments. I make no point about the technicalities of the proposed amendment, and understand the underlying rationale for making these probing amendments.
Although there may be occasions when a security and intelligence agency knows exactly what it has received, that is clearly not always the case. To give a simple example, an agency may receive a USB stick that it believes contains files relating to an organisation engaged in terrorist activity. This might, or might not, be a bulk personal dataset, and needs to be subject to an initial examination to determine whether it is a bulk personal dataset. To be absolutely clear, this initial examination process can only establish what the data are: in particular, whether this is a bulk personal dataset or not, and whether there is a case for retaining it. They cannot be searched or selected for examination without a warrant, so delaying applying for a warrant is not a way for the intelligence agency to work round the system provided for in the Bill.
It is not in anyone’s interest to delay the process. The agency cannot start using the data until a warrant is issued, and the agencies will therefore want to get warrants in place as quickly as possible, particularly as there may be concerns about whether threats and opportunities will be missed by reason of any delay. More generally, the Bill places an obligation on the agency to apply for a warrant,
“as soon as reasonably practicable”,
meaning that if it is possible to apply for a warrant sooner than the deadline set out in Clause 199 the agency would do so. The time limit here is just what I would term the “hard stop” provision within the clause. Amendment 231ZD is therefore unnecessary and indeed, in a sense, unhelpful.
From the point where the intelligence agency believes a dataset created in the United Kingdom includes personal data, as the noble Baroness, Lady Hamwee, noted, it has three months to complete the initial examination and apply for a warrant to retain and, if necessary, select data for examination from the dataset. Amendment 231ZE seeks to reduce this period from three months to one month.
The Government do not think this is appropriate. The structure and format of some bulk personal datasets can be highly complex, even if created in the United Kingdom. In some cases, it can take considerable time to be confident that the structure is sufficiently understood. Only then can the intelligence agency accurately describe the information contained in the dataset and know whether it is necessary and proportionate for it to be retained. There may be other factors that require time to resolve, including, for example, technical difficulties such as formatting, compression and encryption. Indeed, there may be language issues: the dataset, even if created in the United Kingdom, may be in a foreign language. In addition to that, the size of the dataset can be a factor. Three months is therefore considered the appropriate time limit for this initial examination. However, I underline the point that this is an outer limit—this is the hard limit for that.
Again, I emphasise to the noble Baroness that this three-month time limit does not provide a way for the agencies somehow to circumvent the safeguards within the Bill. The dataset in question cannot be used for intelligence purposes until a specific BPD warrant is in place or until the provisions set out in chapter 6 of the draft code of practice, which relate to authorising retention and use of a dataset fitting within a class warrant, are met. In these circumstances, I invite the noble Baroness to withdraw the amendment.
Baroness Hamwee
I am grateful for that explanation. It has helped me to understand the process but it has also made me wonder whether in Clause 199(3) the term “belief” is the correct one. The way that the Minister has described it, it is more of a suspicion—I do not mean that in any negative way—or a concern. A “belief” suggests that there has been a thought process arriving at a conclusion. I do not expect him to respond to that now unless he wants to but I am left wondering, and he might want to look at this again, whether this wording quite describes the completely cogent explanation about the clause that we have just heard. For the moment, though, I beg leave to withdraw the amendment.
Investigatory Powers Bill
Baroness Hamwee Excerpts(8 years, 2 months ago)
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Baroness Hamwee (LD)
I hope I am right in thinking that the Government did not table an amendment to this effect at this stage because of time constraints and that they will bring forward their own version. In case I am wrong about that, I will ask the Minister a question which I asked him privately a couple of days ago: what do we have to do to persuade the Government to accept Mr Anderson’s recommendation? I can hear the response to a different hypothetical amendment, but David Anderson did not recommend that. So we have the converse being the situation we have now. There is so much confidence in him. We are all aware of the care that he has taken with this report and to stay within the terms of reference, which we, too, would have liked to have been rather wider. His recommendation should be accepted. None of us will be surprised to be told, “Yes, in principle, but not quite this drafting”. Nor is it surprising that the answer to the question about the operational case is, “Yes, there is a utility in these powers”, even though, as I say, the question is narrower than we would have liked to have seen.
Mr Anderson identified the difficulties of buying in expertise to perform the functions that he has talked about. He said that the experts involved should be “capable of probing” the agencies,
“explaining difficult concepts to lay decision-makers, and generally contributing to the culture of robust challenge that will be essential to the effective operation of the IPC”.
He envisaged,
“a mixture of independent academics and individuals with substantial, current experience of industry”.
He does not discount moral philosophers. I am sorry that the noble Baroness, Lady O’Neill, just left, because there are Members of this House who could make the case for moral philosophers in this arrangement and who, by their own contributions over a range of issues, continually make the case.
Mr Anderson also quoted a point about the importance of the IPC proactively seeking out and bringing to public attention,
“material legal interpretations on the basis of which powers are exercised or asserted”.
I have struggled—as will have been clear enough to other noble Lords—to understand the subject matter of the Bill to get beyond the answer to Polonius’s question:
“What do you read, my lord?”,
which for me is also, “Words, words, words”. Graham Smith, the lawyer who made this point and who is quoted by David Anderson, in evidence to the Joint Committee wrote about the importance of bringing,
“a legal interpretation … to the attention of the oversight body which would have to bring it to public attention”.
He said that such mechanisms—bringing legal interpretations into the arena—would enable them to be,
“publicly debated and if appropriate challenged”.
He talked about providing,
“not only oversight but insight”.
I like that phrase.
These issues of the legal interpretation are inseparable from what is conventionally thought of as technical. I mention them now as it seems useful to try to cover the ground a little. I will try not to repeat the points made by the noble Lord, Lord Rosser, with which, by and large, these Benches completely agree.
David Anderson gave us one example of the technological issues affecting the future use of bulk powers: the continuing trend towards anonymisation. I thought I would share with the Committee an experience I had recently that brought home to me of what general and overwhelming public importance these issues are. I was very startled to find that a play I went to at the Edinburgh Fringe a couple of weeks ago was about RIPA—not perhaps what you want at nine o’clock in the morning of a holiday. It was also primarily about how easily information about each of us is accessed, used or misused. I hope that Tim Price, the writer, will forgive my quoting him alongside Shakespeare, but I was taken by this. I will not read the whole script. He said that,
“if you believe in freedom of association, if you believe in freedom to protest, if you believe in privacy, then the only way to exercise those freedoms is to be anonymous … If a Government cannot identify you, it cannot surveil you”.
From these Benches, we support the amendment.
Lord Keen of Elie
My Lords, I agree with the noble Lord’s intention in Amendment 204 to ensure that communications data can be acquired in bulk and analysed in real time. Indeed, the Bill already permits this. I draw attention to Clause 146(5) and 146(6), which provide for such a scenario as he suggests in this amendment. These subsections specify the conduct which must be described in the warrant and any conduct that it is necessary to undertake to do what the warrant expressly requires. If it was therefore necessary to obtain bulk communications data in real time, these provisions would allow it.
Baroness Hamwee
My Lords, I think that the noble and learned Lord is speaking to Amendment 204, which has not in fact been spoken to.
Lord Keen of Elie
I had understood that the noble Lord, Lord Paddick, also referred to Amendment 204 but if he did not, I apologise.
I turn then to Amendment 203A, which seeks to exclude the ability for a bulk acquisition warrant to require a communication service provider to obtain third-party data where it is not already in its possession. I do believe that the noble Lord referred to that.
Investigatory Powers Bill
Baroness Hamwee Excerpts(8 years, 2 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, on behalf of my noble friend Lord Paddick and myself, I shall speak to this amendment and to Amendment 194DA.
The first amendment provides that the Secretary of State should provide “funds to cover” the hiring of staff, the arrangement of facilities and so on for the judicial commissioners. The amendment simply probes whether the appointment of staff—indeed, the hiring and firing of staff—is a matter for the Secretary of State or for the IPC. I would be grateful if the Minister will help me on how—in the real world, which has just been referred to—that will be dealt with.
Amendment 194DA provides for a new clause—although it is not so very new—to create a role in this for the president of the Investigatory Powers Tribunal. RIPA provides for the Secretary of State to pay members and expenses—remuneration, allowances and so on—with the approval of the Treasury. I have not sought to delete the Treasury’s control—I am realistic to that extent—but wanted to add a role for the president. Should expenses, for example, be a matter for the Secretary of State? I beg to move.
Lord Beith (LD)
My Lords, it is quite important that we get this right. As I think the noble Lord, Lord Murphy, will remember, one of the commissioners under the previous arrangements was found by the ISC to have been hopelessly inadequately provided with staff, to such an extent that there was a huge build-up of correspondence. That was some years ago and it took some effort by Members of our party as well as of his to ensure that that was quickly remedied.
I also have experience as a constituency Member of Parliament in dealing with an employee issue, the merits of which I will certainly not go into but which was not helped by its being unclear who the employer was. I am talking about somebody who was engaged in the office of one of the commissioners. So I am grateful to my noble friend for trying to make sure that we get this bit right.
Baroness Hamwee
My Lords, I had no idea that I had read my noble friend’s mind—there was no communication between us on this. The noble and learned Lord’s last comment, about there never having been a problem, was perhaps anticipated by my noble friend. The tribunal is to be independent of the Home Office. There is, of course, a link between these issues and that independence. Indeed, I believe the Home Office is keen to present the tribunal as independent. The issue that my noble friend raised about who employs the commissioners is clearly important.
Autonomy for the IPC is important. As ever, as one stands up to move an amendment, one thinks, “I could have drafted that slightly differently”, as the Minister himself has pointed out. This all might sound like minor stuff but, in practice, it is probably quite important. Of course, I am not going to pursue these matters today and will ask to withdraw the amendment, but perhaps more has come out of this than I expected. I beg leave to withdraw.
Lord Rosser
Clause 214(1) provides that the Secretary of State may by regulations modify the functions of the Investigatory Powers Commissioner or any other judicial commissioner, subject to the constraint in subsection (2). On the face of it, that is a fairly wide-ranging power and it would be helpful if the Minister could say what functions of the IPC the Government think that they might need to modify by regulations, and whether that would include a diminution in the role and responsibilities of the Investigatory Powers Commissioner or any other judicial commissioner.
One could surely argue that the functions of the commissioner or of any other judicial commissioner should be set out in primary legislation and modified only through primary legislation, particularly where it reduces their role and responsibilities. What modifications of the functions of the Investigatory Powers Commissioner or of any other judicial commissioner, subject to the provision of Clause 214(2), would the Government think it inappropriate to deal with by regulations under Clause 214?
Our amendments seek to remove the power to modify by regulations by amending Clause 214(1) to say that the Secretary of State can by regulations only,
“extend and augment the oversight”,
functions of the Investigatory Powers Commissioner or any other judicial commissioner, and only in order that those functions should be able to keep up with technological or other developments. This would also appear to have some relevance to the recommendation in the Anderson Report of the Bulk Powers Review that a technology advisory panel should be established to advise the Secretary of State and the Investigatory Powers Commissioner.
We also have an issue in this group in relation to Clause 242 standing part of the Bill. The reason is that in its report published on 8 July of this year, the Delegated Powers and Regulatory Reform Committee raised a number of concerns about the powers conferred on the Secretary of State under Clause 242 to make such consequential provision as she considers appropriate by regulations, with this power being able to be exercised by amending or otherwise modifying the provisions of primary or subordinate legislation, including future enactments. The Delegated Powers and Regulatory Reform Committee also considered the powers conferred by paragraph 33 of Schedule 8 to be inappropriate to the extent that they permit amendment by regulations of future enactments passed or made after the current Session, as well as amendments to Schedule 8 itself.
There are other amendments in this group relating to the concerns and views expressed by the DPRR committee on the Bill, of which I am sure the Government are aware. I will therefore not go into further detail on this score but instead simply ask the Minister to say what action the Government intend to take in the light of that committee’s report.
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I have Amendments 194CC to 194CE, 238A and 238B, 240A and 240B, and 242A in this group. First, of course, there are the amendments of the noble Lord, Lord Rosser. The first of these is very similar to Amendment 194C, which we debated before the Recess, and which would have replaced the word “modify” with “extend or augment”. The amendment of the noble Lord, Lord Rosser, would do the same, except that it says,
“extend and augment the oversight”.
The Minister’s reply on the third day of Committee referred the Committee to the affirmative regulations which would be required and to the scrutiny involved. I am often not convinced by an argument that secondary legislation provides adequate scrutiny regarding the protection that might be given. I will probably never be wholly convinced about this as a mechanism until there is a mechanism to amend secondary legislation. I dare say that the response will be the same; if it is not, that will be interesting in itself.
On Amendment 194CB, I do not think that I would want to limit the modification which is the subject of this to keeping up with technical developments. There could be some other reasons if it is found that the powers are not quite spot on. But this is certainly an area of concern.
Amendments 194CC to 194CE deal with Schedule 7, which relates to codes of practice. I have already expressed some reservations about them. The first of the amendments would add to the procedural requirements that the Secretary of State must consult on a draft code as well as consider representations on it. The Minister may say that the Secretary of State will have to consult because she cannot consider representations without consulting. I am not quite sure whether that would be a logical or complete answer, but assuming that the Secretary of State will be expected to consult, we should say so.
Two other amendments concern the terms “taking into account” and “having regard to”. I realise that we discussed the hierarchy between these terms—if there is any—on a previous day, so I apologise to the Committee. I think that the answer was that it would be inelegant not to use different terms in the clause, which would otherwise suffer from very clunky wording.
The noble Lord, Lord Rosser, referred to our other amendments, which indeed come from the report of the Delegated Powers and Regulatory Reform Committee. I am extremely grateful to the Public Bill Office and in particular to Nicole Mason, with whom I had some quite long discussions and email exchanges as I tried to get to drafting that would pick up the points made by that committee. This is what these amendments seek to do. The noble Lord referred to the concern about a power to amend future enactments—not only those later in the same Session as the Bill, which would be understandable, but whenever they are made.
The committee also quoted a paragraph from the memorandum on delegated powers, which advised the House that,
“this potentially wide power is constrained by the requirement”,
on the Secretary of State to consider,
“the provision to be appropriate in consequence of this Act. Accordingly, the power is effectively time limited”.
The committee said that it found this paragraph difficult to understand—and so did I. It also said that it is not convinced that it is necessarily right. Its recommendation was that,
“the powers conferred by clause 242(2) and (3) are inappropriate to the extent that they permit amendment of future enactments passed or made after the current Session”.
Earl Howe
My Lords, let me turn first to Amendments 194CA and 194CB in the names of the noble Lord, Lord Rosser, and the noble Baroness, Lady Hayter, which deal with Clause 214.
Clause 214 allows a Secretary of State to modify the functions of the Investigatory Powers Commissioner or other judicial commissioners. This will allow the functions of the judicial commissioners to be extended, but also to be changed to reflect any potential changes to the investigatory powers that the commissioners oversee. The judicial commissioners will oversee the use of a wide range of powers, including some in other enactments. Those powers may in due course be changed or updated, perhaps in the same way that this Bill is replacing parts of RIPA. In such a case, it is right that the functions of the judicial commissioners could be modified to reflect the changes. However, this may not mean an extension of the judicial commissioners’ oversight. The change may be entirely neutral—for example, a public authority changing its name or something of that sort. If these amendments were accepted, such a sensible change would not be possible.
I hope I can reassure noble Lords that this power will not be used to reduce the oversight provided by the commissioners. The Government have been very clear on this point. It is also worth reminding the Committee that this power is subject to the affirmative procedure and that Parliament will have to approve any regulations made under this clause. So any attempt to diminish the commissioner’s oversight responsibilities, were such an attempt to be made, would no doubt be scrutinised extremely carefully by each House of Parliament, particularly in the light of the assurance that I have just given.
The Committee will recall that the Delegated Powers and Regulatory Reform Committee expressed a concern about the breadth of the order-making power, as was made clear by noble Lords. It recommended that it should not extend to the IPC’s functions relating to the authorisation of warrants. The Government accepted this recommendation, and this clause has been amended accordingly.
Amendments 194CC, 194CD and 194CE deal with changes to Schedule 7. Amendment 194CC would require the Secretary of State to consult persons interested in a code of practice before issuing such a code. This amendment is unnecessary as the clause as drafted provides for the publication of codes in draft and for the Secretary of State to consider representations on the draft codes. In order for the Secretary of State to hear representations on the code, the Bill requires a consultation to be conducted.
I understand that Amendments 194CD and 194CE are intended to probe whether the use of “have regard to” or “take into account” strengthens or weakens the effect of the consideration of a failure to comply with a code conducted by a supervisory authority or a court or tribunal. Having taken advice on the matter, I can assure your Lordships that the choice of language is based on the context and it is appropriate to refer to a court or an oversight body taking matters into account. However, that form of words does not provide any greater or lesser degree of consideration.
Amendments 238A, 238B, 240A, 240B and 242A I believe respond to the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on this Bill of 8 July 2016. These amendments relate to the parliamentary procedure used where primary legislation is modified and to the power to make consequential amendments not being time-limited in relation to Clause 242(2) and Clause 242(3).
The proposed amendments to Clause 238 seek to ensure that whenever a delegated legislative power is used to modify primary legislation the affirmative procedure should apply. This is a point which has been raised by the committee in the context of a number of Bills, and I am afraid that it is one that the Government cannot accept. Where secondary legislation amends the text of primary legislation, the Government agree that such legislation should be subject to the affirmative procedure. The Government have committed that, wherever possible, changes to primary legislation will be made by textual amendment rather than by modifying the primary legislation. There are likely to be relatively few occasions when the powers to otherwise modify primary legislation need to be exercised—I apologise for the split infinitive which the noble Baroness pointed out. However, it remains the Government’s position that there are some cases where it is necessary to modify primary legislation and that it is not possible to specify which kinds of modification of primary legislation should attract the negative procedure and which the affirmative procedure without creating legal uncertainty.
The Government have set out their position in the Delegated Powers Committee memorandum on this Bill, and in relation to a number of different Bills, and remain of the view that the position is justified and that the powers in the Bill are subject to the appropriate level of parliamentary scrutiny. I have in fact today written to my noble friend Lady Fookes, the chair of the Delegated Powers and Regulatory Reform Committee, setting out the Government’s position and the reasons for it in response to the committee’s view on this issue and on the point raised by the committee on the power to amend Schedule 8. I will, of course, place a copy of that letter in the Library of the House. I therefore ask that these amendments be withdrawn.
The proposed amendment to Clause 242 seeks to constrain the power to make consequential amendments so that it could not be used to amend legislation passed after this Bill receives Royal Assent. Clause 242 contains the usual power to make amendments to other legislation consequential on the provisions in the Bill. However, as currently drafted, the power would permit the amendment of legislation passed at any time in the future. Amendment 242A would in fact go further than the committee’s recommendation, which recognised the necessity of amending of enactments passed or made during the current Session. I can confirm that the Government will bring forward amendments on Report which would restrict the powers conferred by Clause 242 and the similar power in Schedule 8 to the Bill in response to the committee’s recommendation.
The power to make consequential amendments to enactments passed in the same Session is necessary because other Bills before Parliament at the same time as this Bill touch upon the powers and public authorities covered by this Bill, such as, for example, the Policing and Crime Bill. Since it is impossible to predict how those Bills or the Investigatory Powers Bill may be amended during their parliamentary passage, and which Bill may achieve Royal Assent first, it is necessary to allow for the possibility of consequential amendment of future enactments.
I have just been handed a note to amplify what I said on Amendment 194CC in relation to consultation on codes of practice, and will just add that consultation comprises publication of a draft and consideration of any representations made. I suggest to the noble Baroness that publication, by its nature, is conspicuous and is the means by which government consultations are established. I hope she is satisfied on that point.
Finally, government Amendment 241, which is in this group, makes it clear that a statutory instrument containing regulations made under Clause 50(3)—the designation of relevant international agreements under which interception may be carried out—is subject to the negative parliamentary procedure. This amendment is consequential on the amendment to Part 2 which was considered in July. I hope that the House will agree to that amendment when I come to move it.
Baroness Hamwee
My Lords, I apologise for the rather cheap gibe about the split infinitive. I recognise that I am old-fashioned, and styles have moved on. It would obviously be inappropriate to pursue the points made by the Delegated Powers and Regulatory Reform Committee at this point, given that the Minister has written to it, and we will wait to see if anything more happens on that. However, I will just say, on the question of consultation, that the Government are often very good at being proactive in consulting and at contacting organisations which they know have an interest. That is something that should be encouraged. To my mind, consultation which simply involves publication on a website—or perhaps in common parlance, “slipping something out”—the day before a recess and waiting to see whether there are any comments is not good practice. That was why I was concerned to spell this out. I am not of course suggesting that anyone on the Front Bench at the moment would indulge in such a practice, but it has been known to happen. This is not an unnecessary point, but I will not pursue it this evening.
Lord Rosser
I thank the Minister for his response, although clearly the answer that he has given on behalf of the Government is not the one that we might have been hoping for in relation to the Delegated Powers and Regulatory Reform Committee’s report and the concerns and views it has expressed. However, rather than making any more specific statements than that at this stage, I simply confine my observations to saying that I will wait and read the letter that I understand the noble Earl said was sent to the noble Baroness, Lady Fookes, which is presumably responding to the issues that have been raised. I will take the opportunity to read that letter and then decide whether to pursue the matter further or not at a later stage. I beg leave to withdraw the amendment.
Investigatory Powers Bill
Baroness Hamwee Excerpts(8 years, 4 months ago)
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Lord Beith
My Lords, I am very glad the noble Baroness has tabled this amendment because it enables us to clarify the extension of the things we were discussing on telephone interception into this area, which the Government are now seeking to ensure is covered in other respects and that the same principles should apply. Having said that, I am inclined to agree with the noble Lord, Lord Murphy, that what is now in the Bill is probably about the best set of safeguards that we could reasonably construct from the very important principle—I agree with the noble Baroness on this—that we should protect the ability of constituents and whistleblowers to contact elected Members to raise matters of concern. They may be matters which affect the very organisations, whether it is the intelligence services or the police, that might seek the power to initiate interception.
The noble Baroness mentioned the Wilson doctrine, which came up earlier. That adds no clarity whatever to the situation but simply obscures it. It is even further complicated now by the fact that the last Prime Minister to make a Statement on the subject is no longer the Prime Minister. It is not even clear that his successor will consider herself bound in any way by what Mr Cameron said on the subject. As I think we teased out in the previous discussion, the Wilson doctrine does not really mean anything now. There is now a statutory basis for considering how to deal with a situation where there are reasonable grounds to believe that a Member of a legislature is involved in very serious crime or associated with terrorism. That is the procedure set out in the clause that the amendment addresses.
That there should be a bizarre principle now that the Government generally have a policy of not using these sorts of powers but will come along to Parliament some day and say, “We’ve changed our minds and now we want to use these powers very widely indeed” just does not make any sense at all. Since no Prime Minister has ever come to the House to satisfy the requirements of the Wilson doctrine—that if government policy changes, you should make such a Statement—the whole thing has become absurd. We should give it a decent burial and satisfy ourselves that the provisions we put in place for governing interceptions of any kind of the communications of a legislator are satisfactory. I am of the view that the clause we have now, following the various interventions that the noble Lord, Lord Murphy, described, is a good basis for doing so.
Baroness Hamwee (LD)
My Lords, I do not know whether the noble Baroness, Lady Jones, feels that she got an adequate response to her equivalent amendment the other day. I had a look at the Official Report this morning and I thought that it was quite telegraphic—quite brief. So it is understandable that she would raise the matter again in this context. I see that she has expanded subsection (3)(d) with regard to the public interest. On the noble Baroness’s previous amendment on interception, my noble friend Lord Paddick made the point that if ever there was a need for political accountability regarding the target of a warrant, it is when that target is a parliamentarian. He acknowledged the tensions and dilemmas in all this.
I am a member of the Joint Committee on Human Rights, which, when it considered these issues before the Bill had its Report stage in the Commons, expressed concern about the separation of powers, which is what underlies this, at any rate as regards parliamentarians—the need to be able to communicate freely with constituents and others because of the distinction between the Executive and the legislature.
Perhaps I might say a word about government Amendment 173—although not to argue with it. It is about modifications and the Committee knows our concerns about those, but I accept the need to define “designated senior official”. But I wonder about the wording that this is for,
“the purposes of this section”.
Presumably it is also for the purposes of the modification and is case by case. I am not really sure about that but I can see the need for an audit trail. I think that the phrase “designated senior official” is used elsewhere, not only in this clause—I found it in Clause 112(7)—and not only as a senior official designated by a public authority. So I wonder whether there is a need to look at the definition throughout. Of course, the Bill is not really long enough as it is, so maybe we should have additional definitions collated in Clause 236. My principal point is whether there might be some confusion about using the phrase only for the one section.
Investigatory Powers Bill
Baroness Hamwee Excerpts(8 years, 4 months ago)
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Baroness Jones of Moulsecoomb (GP)
This amendment would replace a proposal to create an Investigatory Powers Commissioner with provisions to create a new investigatory powers commission. The investigatory powers commission would be a separate oversight body, as recommended by the Independent Reviewer of Terrorism Legislation, David Anderson QC, in his report A Question of Trust. The commission would have oversight functions that currently reside with judicial commissioners who authorise warrants.
The IP Bill proposes that the Investigatory Powers Commissioner will replace the Interception of Communications Commissioner’s Office, the Office of Surveillance Commissioners and the Intelligence Services Commissioner. That sort of reduction does sound sensible. Their roles would go to the new Investigatory Powers Commissioner and fellow judicial commissioners, who would therefore have dual responsibility for, first, reviewing surveillance warrants issued by the Secretary of State and law enforcement chiefs and, secondly, for post-facto oversight of the use of intrusive powers. Additionally, the investigatory powers commission would be required to keep under review any aspect of the functions of the agencies, as directed by the Prime Minister, and must make an annual report to her about the carrying out of the functions of the judicial commissioners.
The Home Office has so far refused to establish an independent investigatory powers commission as a statutory oversight body, in spite of recommendations based on extensive evidence. Instead, it has retained its own proposal for a team of judicial commissioners, appointed by the Prime Minister and funded by the Home Secretary, to both authorise and oversee the use of investigatory powers. This approach confuses and conflates the roles of authorisation and oversight. It is constitutionally inappropriate for those involved in decision-making to have responsibility for the oversight of those same decisions. Such conflation gives rise to a potential conflict of interest. I support the reduction of oversight to one consolidated body but urge the Government to make oversight more independent. I beg to move.
Baroness Hamwee (LD)
My Lords, my noble friend Lord Paddick and I have Amendments 194A, 194B and 194C to 194F in this group. Clause 213 deals with funding, the provision of staff, accommodation, equipment and facilities, and remuneration and allowances for the judicial commissioners. I read the “remuneration and allowances” as being personal to the judicial commissioners. Our amendments are all concerned with ensuring that the commissioners have the tools to do the job.
Amendment 194A would insert “support, assistance”. I do not think that I need to pray in aid the support and assistance only relatively recently acknowledged as being needed by the Independent Reviewer of Terrorism Legislation; of course, I had his situation a little in mind but it is not the only factor. I am not convinced that the term “facilities” extends, for instance, to legal or technical support. There is a reference to “staff” but that suggests permanent staff, not the ability to seek advice from people who are not on the payroll. I am sure that it is not intended that the commissioners should not be able to access such advice.
Amendment 194F deals with Clause 220, regarding the Technical Advisory Board. It would provide for the appointment of people whom the Investigatory Powers Commissioner considers should be appointed, as well as the Secretary of State. It is also intended to probe whether the board will be available to the Investigatory Powers Commissioner and the judicial commissioners.
Amendment 194E deals with the same clause, which says:
“There is to continue to be”,
a board. Our amendment provides that there “shall” be a board. We are perhaps not starting from here in the real world but, legislatively, we are. That there should “continue to be” a board—I know that RIPA provides for one—implies that something unstated is carried over to the new regime. If that is so, I would like to understand it.
Amendment 194B is still about support and would enable the Investigatory Powers Commissioner to share with Parliament representations about the adequacy of his or her support. This is about Parliament’s scrutiny role. If there are truly double locks, the IPC should be able to report on the issue and not be stifled by some Secretary of State in the future—I do not apply this to any previous or current Secretary of State. Clause 210 on the annual reporting provision does not, to my mind, cover the point—I think that the amendment of the noble Lord, Lord Rosser, makes a similar point.
Our other two amendments are about discrete points. Amendment 194C is to Clause 214, which would enable the Secretary of State to make regulations that “modify the functions” of the commissioners. We are concerned that this could be used to override or limit their functions. I can just about see an argument for extending functions through this mechanism but not for detracting from functions by means of secondary legislation. This amendment is to probe what is intended.
I may well be told that experience might demonstrate that changes are needed. While I can see that, there is always the issue of what is appropriate for secondary legislation and what really should go into primary. Also, if there is a concern to be able to respond fairly quickly to a need to modify, are we talking about modifying functions or modifying powers? Again, that should probably be by extension rather than reduction. The Constitution Committee made comments about this and, in the usual way that our committees report, said that the House may wish to consider the matter and ask the Government whether this is really appropriate.
Amendment 194D would provide for the rules under which the Investigatory Powers Tribunal operates to be made by the tribunal procedure committee rather than the Secretary of State, as is provided for now under Section 69 of RIPA. Again, the Constitution Committee raised this issue and, in its report on the Bill, said:
“The capacity of the Secretary of State to determine”,
the tribunal’s rules,
“could call into question the Tribunal’s actual and perceived independence. The introduction of a right of appeal would clearly elevate the IPT from a complaints body to an independent tribunal within the justice system”.
It then suggested that the House should consider the matter. The last subsection of my proposed new clause in Amendment 194D, which would omit Section 69(12) of RIPA, is consequential and refers to Scottish Ministers.
On Amendment 176A, we take very much the points made by the noble Baroness, Lady Jones, and no doubt expressed to us all very cogently by Liberty. There is clearly widespread concern about this issue and it is right that we should have an opportunity to bottom out here just why the Government are so focused on the structure that they propose in the Bill, rather than there being a new commission specifically tasked with oversight functions. I believe that my noble friend Lord Strasburger has some comments to make about this. He said at dinner that he would not do so but I think he has decided that he cannot resist. The noble Baroness is right to raise this point.
Earl Howe
No, I do not believe it does. A lot of these overheads, such as those relating to back-office functions, can be shared with other arms of the executive, so my advice is that these would be extra costs that would have to be paid for by the new body.
The new commission will also have to appoint a board and at least three non-executive directors. That would certainly add significantly to the expense of creating a new oversight body with, I contend, very little benefit in the quality of the oversight that it provides. Creating a commission would not serve to advance independence, which was one argument put forward by the noble Baroness. The current oversight bodies, the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner, are provided for in statute in the same way as we propose to provide for the Investigatory Powers Commissioner. The model we propose will allow the oversight bodies to focus on their core tasks of inspections and investigations without tying them up in too much administration; that is a sensible approach. I hope that the noble Baroness will feel able to reflect on that between now and Report.
As for the comment that the model we propose does not respond to the recommendations about separating powers, it will be for the Investigatory Powers Commissioner to decide how to arrange and run their office. The commissioner will have responsibility for two distinct functions and will have sufficient staff to undertake them independently of each other. However, as David Anderson recognised, there are distinct advantages in having that relationship, even if it is an arm’s-length one, between the two functions. An example of where David Anderson felt that the relationship will be useful is when the judicial commissioners could specifically advise the inspectorate on matters to look out for on their inspections. The dialogue would be lost if the two functions were kept completely distinct.
Baroness Hamwee
Before the noble Earl moves on, 20 minutes ago I was not hugely enthusiastic about a single body; I have become a little more so as the debate has gone on. I have one question and another point. Have the current commissioners been consulted about the Bill’s proposals for the structure? What is their view about a single body as distinct from the parallel arrangements? Secondly, I absolutely understand that if you create a new body you create the need for some administrative—bureaucratic, if you like—arrangements, but for the argument to hinge too much on savings really worries me. As my noble friend says, surely, from paperclips onwards, the needs will be identical. If savings are expected from this, there must be concern that the functions will be affected.
Earl Howe
I understand the noble Baroness’s strength of feeling on this. Part of the purpose of our debates in Committee is to enable all of us to reflect on the points that have been made between now and Report, and I will certainly go away and do that. The answer to her first question is yes, the current commissioners were consulted about bringing the functions together into a new commissioner, and they approve of creating that single function.
Amendment 194A would require the Secretary of State to provide the judicial commissioners with support and assistance. While I agree with the intention behind the amendment, it is unnecessary. In terms of support, Clause 213 already places a duty on the Secretary of State to provide the IPC with staff, accommodation, equipment and other facilities. As regards assistance, Clause 211 requires the Secretary of State to provide the IPC with any access and assistance as necessary to fulfil its functions. Amendments 194B and 194BA are more specifically about the funding and resources that the IPC receives from the Secretary of State.
I fully support the principle that the IPC should be both well resourced and well supported. The impact assessment the Government have published makes it clear that the predicted future funding of the IPC is £7.4 million per annum. That is an increase of 131%—well over double—when compared to the combined funding that the existing commissioners received before the Bill was introduced. I also appreciate that the needs of the commissioner may change over time. Therefore, Clause 210(2)(d) makes it clear that the annual report of the IPC must contain information about,
“funding, staffing and other resources”.
I am certain that the IPC would use this opportunity to alert the Prime Minister if it felt that it was under-resourced in any fashion. The Prime Minister must then lay this report before Parliament, so Parliament could then take up the cause of the IPC if we ever reached that state of affairs. Therefore, I do not believe that Amendments 194B and 194BA are necessary.
Amendments 194E and 194F propose changes to Clause 220 of the Bill. This clause provides for the continued existence of a technical advisory board, currently provided for in Section 13 of RIPA. It also provides for the make-up of the technical advisory board to be prescribed by the Secretary of State in regulations. Amendment 194E would make a minor change to this clause. From what the noble Baroness said, I do not think that the purpose of the amendment is to ensure that the membership of the existing board is replaced in its entirety—that we should scrap the existing board and start from scratch. If I am wrong about that, perhaps she could indicate as much, but I did not gather that from her comments. But it might be helpful for me to provide some additional information about the make-up of the current board.
Current board members were appointed from the very small pool of people who have knowledge of the cost and technical feasibility of developing the technical capabilities used to give effect to warrants. In line with RIPA and the provisions in this clause, there is a balance of representation from the telecommunications industry and from the agencies entitled to apply for warrants or authorisations under the Bill. The role of these experts is to advise the Secretary of State on cost and technical grounds if an interception notice given under RIPA is referred for review.
The Investigatory Powers Bill extends this important safeguard to data retention notices, national security notices and all technical capability notices. It is of course right that board members must be able to meet the requirements of this new role. So, in response to the recommendations of the House of Commons Science and Technology Committee on the draft Investigatory Powers Bill, the Government committed to audit the membership of the current board to identify any gaps in knowledge; those will be addressed as a priority through the recruitment of new members.
It may be helpful for me to make the Committee aware that the board’s independent chair may, if required, call on external expertise to assist the group in deciding reasonable costs and the technical feasibility of an obligation. Furthermore, regulations under Clause 220 may also provide for other persons to be appointed to the board as the Secretary of State considers appropriate. This ensures that the technical advisory board is sufficiently flexible to be able to seek particular expertise as required.
I note that the noble Baroness feels that the word “continue” is inappropriate in this context, but I argue the opposite. If the board exists at the moment, it is perhaps not the right thing implicitly to deny its existence by failing to include a word that acknowledges the fact. I hope that we are not dancing too much on the head of a pin there, and that she will not insist on the change that she has proposed.
Earl Howe
I understand the point made by the noble Lord, but I think it would be unimaginable that Parliament would not protest if there were a redaction in the report around the commissioner’s funding. Redactions, in any case, are made only on national security grounds, not on matters of this nature. Nevertheless, I will consider carefully over the summer period what the noble Lord has said, and no doubt we can return to these matters at a later stage.
Baroness Hamwee
My Lords, I have been listening to what the Minister has been saying. It is not too much of a stretch to imagine an argument that goes, “We can’t publish comments about the funding available because that would give clues about the severity of the security system situation or about the effort that is or is not going into dealing with it”, so it is a serious point. Regarding the phraseology in Clause 220, I was never much of a dancer so I hope the Minister will forgive me. I accept that it is a continuation of an existing board, but that is not how it appears in the Bill. I think it would benefit from being anchored by a reference to the existing board. I do not want to bring back such a minor point on Report, so I thought I would make it now and see if it gained any traction.
Baroness Jones of Moulsecoomb
I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Strasburger, for supporting the amendment. Needless to say, I am not convinced by the Minister’s response but I thank him for it.
I accept that the consolidation of all these offices—the IPC, the IOCCO, the OSC and the ISComm—is going to mean a magnificent saving, and I congratulate the Government on their thriftiness. However, my experience of consolidating power into one person is exemplified by the changes to police oversight—that is, the creation of police and crime commissioners. In my experience, the PCCs actually cost a lot more individually than the previous system did. I would argue that there is no guarantee that one body would not be a bargain just as much as a consolidated body could be.
I am also not convinced that there has been sufficient separation between authorisation and oversight, which is a very important issue that we have to keep in mind. However, bearing in mind that it has been hotter today in the UK than in Bangkok and Honolulu, and that at least this debate has kept us out of the heat, I thank everyone for this debate and beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I also have Amendments 178, 180, 183 to 187, 187A, 188 and 189 in this group, which deals with the appointment of all commissioners.
I appreciate that the Government have moved very significantly by requiring the appointment to be dependent on the recommendation of the Lord Chancellor, the Lord Chief Justice and the heads of the Scottish and Northern Irish judiciary. It would probably have been tactful to include a reference to the latter two in our amendments. The central point of several of our amendments is to make the appointments entirely a matter for the judiciary after consultation with the Prime Minister—in other words, to take this as far away as possible from being a political appointment. It is a point of principle. After all, the Prime Minister can reject recommendations; although she cannot appoint without that support, she could require other recommendations to be put forward, and in our view there should be no hint of a political veto but clear independence. Again, that point is made by the House’s Select Committee on the Constitution. I do not know whether the Minister will tell us that this will be included in the Government’s response to the committee’s report.
On Amendment 178, I thought I had lost the plot by leaving out Clause 203(2) but happily I have not—at any rate not on this issue—as I put the matter of eligibility into our proposed new clause in Amendment 187. We wanted to make the point that further appointments of the judiciary may be needed. The proposed new clause would enable the Lord Chancellor to make recommendations to fill the appointments without adversely affecting the operation of the Court of Appeal and the High Court. I of course appreciate that putting recommendations forward does not need a provision in the Bill, but I know that in certain circles this is a pretty hot topic and I wanted to highlight what I understand may be the added strain on other parts of the judicial system without going on at any greater length at this time in the evening. However, it is important to make the point.
Amendments 183 to 186 question delegation by the IPC to any other judicial commissioner. That seemed wide and unstructured, but on the other hand we wondered whether it might be sensible for the IPC to have a designated deputy, so we included an amendment to that effect.
Amendments 188 and 189 were prompted by briefings from the Law Society of Scotland. The commissioner may be or may become unfit for reasons beyond those listed in the Bill, and consultation with the heads of the judiciary and so on would provide a check on unjustified removal. This area was also picked up by the Constitution Committee, which again made points about the need for public confidence in independence, which makes it inappropriate for the Prime Minister to play any substantive role in the dismissal of the commissioner. Again, the Government may be planning to respond on that matter. I beg to move.
Baroness Hamwee
My Lords, I do not wish to go through all of the amendments sequentially; rather, perhaps I may pick up on just two points.
On independence, the point really being made by the Constitution Committee is about perceived independence. I certainly would not question that. Happily, our judiciary is splendid in that respect. I think it was my noble friend Lord Carlile who talked about the halo; that seems to apply to all of our judiciary unquestioningly. As I say, the point here is the perception.
I acknowledge that we should have referred to the Scottish and Northern Ireland judiciary in our amendments, but I am interested in the point made about the Lord Chancellor. The Lord Chancellor has a role in making the judicial appointment in the first place, which then puts the individual in the position to be appointed as a commissioner. As I understand it, we have a Judicial Appointments Commission and then the Lord Chancellor has a role after it has done its work in allocating the appointees. We were not seeking to exclude the Lord Chancellor; I had just assumed that the Lord Chancellor was in there in any event. I want to make that point clear.
I shall be interested to read the points that have been made just to check that everything has been covered, but perhaps not until next week. I am grateful to the noble and learned Lord, and I beg leave to withdraw the amendment.
Lord Keen of Elie
There was a point I omitted to mention, which the noble Lord, Lord Rosser, raised. He asked whether the Government had given consideration to the recommendations of the Select Committee. Clearly we have done so, albeit we have not slavishly followed all of them. I reassure the noble Lord that we did so.
Investigatory Powers Bill
Baroness Hamwee Excerpts(8 years, 4 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, on behalf of my noble friend Lord Paddick and myself, as well as moving Amendment 39, I shall also speak to our other amendments in the group: Amendments 40, 41, 42, 43, 61, 97, 98, 99, 165A, 167 and 168A. We will not—at any rate today—be opposing the question that Clause 23 stand part of the Bill. I hope that the Minister got that message. We seem to have gone backwards and forwards on that.
I turn to the approval or disapproval of warrants by the judicial commissioner. My first amendment deals with the term “review”. This is related to, but not the same as, the judicial review principles. In Clause 39, I struggle to see that “review” is the correct term. In itself, “review” suggests consideration leading to a critique, but if you read a little further you find the terms “approval” and “refusal to approve” almost throughout. Maybe “determine”, which is the term we use in our amendment, is not the right term either and other terminology should be substituted, but we think it should be more than “review”, which seems a rather low-level approach for what is actually provided by the Bill.
We added Amendment 165A to the group. I am not suggesting that noble Lords should keep turning to the different clauses; the same points apply throughout, although no doubt there are other points that we have missed. Amendment 165A refers to Clause 100, where there is a point about the consistency of using “determine”.
Under Amendments 40, 42 and 168A, the judicial commissioner would be required to consider the reasons for the decision given by the decision-maker. We argue that they should not be bound by the decision-maker’s assessment of the facts.
There has been much discussion about judicial review principles. I accept that the approach to judicial review has evolved over the years. I know some of our resident lawyers are satisfied with the use of the term in the Bill, but others are not. It cannot be appropriate to include in legislation a term that has caused so much debate and given rise to such different advice as to what the term actually means. If what is meant is only process then we should say so, although I do not think Ministers are arguing that in relation to whether a decision-maker has addressed his mind to the issue. If it is intended—as it seems to me, reading the whole context for this—that the reasons for the decision are examined, we should say so; we should not leave room for doubt.
On Amendments 39 and 42, which are about interception warrants, similar points apply. On Amendments 97 to 99, which relate to the clauses that we shall come on to which deal with the approval of national security notices and technical capability notices, I accept that there may be different considerations there but, given that one of those considerations is the decision is that of the Secretary of State, again our amendments about determination, reasons and so on would apply. I accept that what we have said is probably not as tidy as it might be. On Amendment 167, which relates to equipment interference, we again suggest “determining” rather than “reviewing” the conclusions.
The Law Society and the Bar Council argued in their evidence to the pre-legislative Joint Committee that the references to judicial review should be removed from the legislation for clarity. I was quite pleased when I came across that only this morning after we had tabled the amendment; it is quite nice to feel that we are not completely out on a limb. I understand that the director of national security in the Office for Security and Counter-Terrorism said in relation to the judicial authorisation of warrants:
“The specifics here are that two things will be critical: first, that they decide in the first place that the action is rational and lawful; and, secondly, that it is necessary and proportionate. Those are exactly the same tests as the ones the Secretary of State will be looking at”.
That leads me again to the view that removing judicial review would help avoid confusion.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I begin with some of the observations made in your Lordships’ House regarding judicial oversight. On the observations of the noble Lord, Lord Strasburger, I have a double lock on my front door. The two locks work differently but they are equally effective. That really is the point of the double lock in the context of this legislation: the locks do indeed work differently but they are equally effective at the end of the day. I would adopt the observation of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that judicial oversight as it has developed provides us with a flexible standard of oversight, which in many senses is wide-ranging, as has been observed. But, of course, it is judicial oversight, and that is what we have to emphasise.
Turning to a point raised by the noble Baroness, Lady Hamwee, on working days a week, we consider that the present provision is appropriate. As to the calculation of the working day, the third working day will be calculated from the day after the warrant is issued. For example, if a warrant is issued on a Monday, it must be authorised by the commissioner by the close of Thursday. So it is the date of issue plus three working days.
Amendments 39 to 42, 165A, 167 and 168A would significantly change the so-called double-lock safeguard, such that the judicial commissioner would be taking their own decision rather than reviewing the Secretary of State’s conclusions as to whether the warrant is necessary and proportionate. The Committee will appreciate that the issue of authorisation has been a central feature in the debate on the Bill. Perhaps I might just give a brief potted history of its development.
The three reviews that shaped the draft Bill—by David Anderson QC, the Intelligence and Security Committee of Parliament and the Royal United Services Institute surveillance panel—made different recommendations in respect of authorisation. One called for full Secretary of State authorisation and the other two called for a hybrid judicial/executive model. It is noteworthy that none of them called for full judicial authorisation for all warrants. The Joint Committee that undertook pre-legislative scrutiny of the draft Bill supported the double-lock approach set out in the Bill, including the use of the well-established principles of judicial review. At Second Reading in the other place, there was very strong cross-party support for a government amendment that preserved the double lock and the role of the judicial commissioner, while linking the judicial commissioner’s scrutiny to the new privacy clause, to put beyond doubt, if it needed to be, that the judicial commissioner would need to apply a sufficient degree of care to ensure that he or she had complied with duties imposed by the new protection of privacy clause in Part 1 of the Bill. So we are on well-trodden ground, and it is clear that there is strong support—including from senior members of the judiciary—for the approach set out in the Bill.
These amendments would confuse the distinct roles of the Executive and the judiciary and undermine democratic accountability—a point touched on by the noble Lord, Lord Rooker. It is surely right that a Secretary of State, who is accountable to Parliament and ultimately to the public, should be making the decision as to whether a warrant for the most intrusive powers is necessary and proportionate. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. While the commissioner’s role is to review the original decision, your Lordships should be clear that this is a robust safeguard. Also, the judicial commissioners will have held or will be holding high judicial office and will be familiar with the principles of judicial review.
As amended in the other place, Clause 23 makes it clear that the commissioners’ review must involve careful consideration and ultimately if the Investigatory Powers Commissioner does not approve the decision to issue the warrant, it cannot come into force. The amendments I have referred to would also require the judicial commissioner to consider the reasons given for the decision to issue the warrant. The amendment is based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If they agree, they will issue the warrant. They do not have to give reasons for the decision beyond confirming that they personally consider that the warrant is necessary and proportionate. The judicial commissioner will review the decision of the Secretary of State based on the evidence provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, the commissioner will refuse to approve the decision. We would submit that it is in these circumstances that the double-lock mechanism is appropriate in this context, and accordingly I invite the noble Baroness to withdraw the amendment.
On Amendments 16 and 19, I have already touched on the reference to removing the term “working days”. Our position is that that is an appropriate way forward with these provisions, and I again invite the noble Baroness not to press these amendments.
Amendments 97 to 99 would significantly alter the double-lock safeguard for notices, such that the judicial commissioner would be taking their own decision rather than reviewing the conclusions of the Secretary of State as to whether the notice under Part 9 of the Bill is necessary and proportionate. The amendments would accordingly also remove the requirement for the judicial commissioner to apply the same principles as would be applied by a court in an application for judicial review. As discussed during scrutiny by this House of similar clauses in Part 2 of the Bill, these amendments would confuse the distinct roles of the Executive and the judiciary, as I mentioned earlier. It is right that a Secretary of State, who is accountable to Parliament and ultimately the public, should make the decision whether it is necessary and proportionate to impose obligations on operators through the giving of a notice. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. As I stated previously, the commissioner’s role is to review the original decision, and your Lordships should be clear that this is a robust safeguard.
One of the amendments would also require the judicial commissioner to consider the reasons given for the decision to give a notice, and again as I indicated before, this amendment appears to be based on a misunderstanding of the process of giving a notice because the reasons are not provided. In other words, under the Bill there is no need to give written reasons over and above those set out in the application itself. Again, in that context I would invite the noble Baroness not to press the amendments.
Baroness Hamwee
My Lords, I am grateful to all those who have taken part in the debate either to support or oppose me, and of course one is used to one’s friends being behind one sometimes. Perhaps I should make a disclaimer. Many years ago the noble Lord, Lord Rooker, when he was at the Dispatch Box was being a bit disparaging—that might be the term—about lawyers and, when I protested, said to me, “Not you. You’re not a lawyer”. Solicitors are excluded for this purpose.
I turn first to “working day”. The noble and learned Lord has said in effect that he disagrees with me, but I am not sure on what basis. Clause 24, where the term first comes up, deals with urgent cases, so it seems counterintuitive that one might have an extended period for dealing with an urgent case rather than one that is as tightly drawn as possible. Can the noble and learned Lord offer the Committee more as to the Government’s reasoning on this?
Lord Keen of Elie
Originally, the period was five working days and, after due consideration, it has been reduced to three. That is considered to be an appropriate period in the context of these provisions. But the Government have reviewed the measure and, as I said, that amendment has already been made.
Baroness Hamwee
Turning to judicial review, determination, refusal to approve and so on, the debate has made my point that we need greater clarity than is provided in these provisions. I agree with my noble friend Lord Carlile—the Committee may be relieved to hear that there is some agreement—at least to the extent that we should know what we want, and we do not yet have clarity in the Bill. A number of noble Lords are clear about what they want, but the Bill is not clear as to what the job is. Clause 23(4), the same clause that provides for a review, states:
“Where a Judicial Commissioner … refuses to approve”.
That suggests something more than we have been hearing about and does not suggest a double lock. I heard what the noble Lord, Lord Murphy, said, and we now have references in Clause 23(1) to necessity and proportionality. However, in assessing those matters, the judicial commissioner must apply the principles of judicial review. I may not be a lawyer in the terms of the noble Lord, Lord Rooker, but I find that this has a degree of circularity and confusion.
In his evidence to the Public Bill Committee, the noble and learned Lord, Lord Judge, said:
“I myself do not think that judicial review is a sufficient indication of those matters”.—[Official Report, Commons Public Bill Committee, 24/3/16; col. 68.]
Although I will not seek to pursue the matter today, we may well wish to return to it.
Lord Keen of Elie
I should correct a reference I made. I referred in the context of the working days to Amendments 16 and 19, which must have puzzled the noble Baroness. That was my internal numbering and I was, of course, referring to Amendments 43 and 61. I apologise for that.
Baroness Hamwee
My Lords, I was so confused that I did not even bother to check the references. I beg leave to withdraw the amendment.
Lord Phillips of Worth Matravers
My Lords, the example given by the noble and learned Lord, Lord Mackay, demonstrates why Amendment 48 is too narrow. If a villain were to seek advice on his will it would not be a criminal purpose but it might none the less be justifiable to listen to the conversation in the hope of finding out where he was.
Baroness Hamwee
My Lords, from our Front Bench I support these amendments, although I take the point about the innocent conduit—if I can put it that way—which becomes more intriguing as one thinks about it. The noble and learned Lord, Lord Mackay of Clashfern, said that if the security services could use another means they would do so. I want to bring into the mix a point that I made when we debated Clause 2, which is that that requirement is not absolute: they would have to have regard to other means and whether those could reasonably achieve the end. This exercised me in a conversation with the Minister and continues to do so, so it is right to bring it into the mix.
Lord Beecham (Lab)
My Lords, a range of subjects appears to be covered both by the amendments and by today’s debate. I think we are all looking forward to the noble and learned Lord’s response to the issues of principle, which it is clear are very much in your Lordships’ minds. I draw particular attention to the report of the Joint Committee on Human Rights, which went so far as to say that,
“we do not see the need for a power to target lawyer-client communications”,
and that the amendment it sought would remove that provision from the Bill because it was deemed unnecessary in view of the iniquity exception. It would be interesting to hear the Minister’s reaction to that, but much of what we have heard today has been about the detailed workings of the Bill.
One of the main substantive issues is the position of the judicial commissioner in whatever processes ultimately result—that seems to me the critical aspect on which we would welcome some guidance from the Minister on the Government’s intentions. If it is still deemed necessary in some form or other to deal with the problem, as the Government see it, of legal privilege, there must surely be at least the safeguard that the decision should be made by a judicial commissioner rather than by a civil servant or Minister of the Crown. That measure of independence and of judicial experience seems fundamental to any acceptable proposal to move along the lines that the Government seek to pursue. Again, it would be helpful if the Minister were in a position today to clarify whether, whatever other details might be subject to debate, that important principle is one that the Government accept.
Lord Pannick
I take the noble and learned Lord’s point that “theoretical” is perhaps the wrong word to use and that “speculative” may be more appropriate. I wonder whether he could answer the question I posed earlier. Given that these powers have been available since 2000, can he tell the Committee whether the authorities have ever used them or whether we are talking in abstract terms about something that may have been required in the past? If it has not been used in the past 16 years, it is speculative.
Baroness Hamwee
My Lords, before the Minister responds to that, it seems that he would be in a better position to answer the question than the noble Lord, Lord Pannick, because I cannot see how he could give an example without someone having breached client confidentiality along the way.
Lord Keen of Elie
Let me say this: the matter is not speculative and it is not theoretical, as the noble Lord concedes. I am not aware of any example of this having happened in the past 16 years, but that does not render it speculative. The point is that the example that can be given—the example I gave—is one that could arise in the future. The question then is whether the agencies should have a means to secure that vital intelligence or face a complete brick wall. In this context, we would simply say this. In response to the point made by the noble Lord, Lord Pannick, over the past 16 years, there is no evidence of damage to the rule of law and no evidence of any intrusion on the ability of lawyers to say that their legal advice is confidential because it is appreciated that this is a wholly exceptional power.
Baroness Hamwee
“( ) Any modification to a warrant must be authorised by a Judicial Commissioner.”
Baroness Hamwee
My Lords, in this group, Amendments 53, 54, 55, 56, 57, 60 and 62, and the Clause 33 stand part debate, are in my name and that of my noble friend Lord Paddick; the Government have Amendment 59, which looks to be an innocent drafting amendment—I hope it is as innocent as my reading of it.
These amendments take us to the modification of warrants. We believe that modification is such a serious action that the judicial commissioner should be involved, which the first amendment deals with; “modification” perhaps gives the wrong impression as to what is sought.
Baroness Hamwee
My Lords, I have no problem with the government amendment, if one accepts the whole premise of the thing.
On the timescale, I always think it is much easier to ensure there is real, rigorous observation of a timescale if a specific one is spelled out, rather than,
“as soon as reasonably practicable”,
because one can come up with all sorts of reasons why something is not practicable. I note that the noble and learned Lord again mentioned bank holidays; he knows our view about their application.
From listening to his explanation, I wonder whether some of the difficulties arise from what “description” means in Clause 32(2)(a). That is perhaps also a factor in Clause 32(2)(b). I must say I am not clear whether one is dealing with a description of an address when one asks whether it is “No. 25” or “No. 125” or, taking that a bit further, when it should have been not “Acacia Avenue” but “Hawthorn Avenue”. Will the Minister—if not at this stage, perhaps subsequently—explain what “description” means, with examples? It seems to me to be a term capable of different interpretations by different people.
I do not think there will be an answer—even though an emissary has been sent—so I think I had better withdraw my amendment. I beg leave to withdraw the amendment.
Baroness Hamwee
My noble friend Lord Paddick and I want to explore a little the provisions on interception in certain institutions, as these clauses are headed. It was suggested in the Commons Public Bill Committee that questioning them was tilting at windmills. I think some justification should be put on the record for these provisions, and certainly for those relating to psychiatric hospitals and immigration detention centres. I do not want to appear to suggest that there is no duty of care or a lesser duty of care in prisons, but I can see greater arguments for a more intrusive regime in prisons.
Clause 48 applies to high-security psychiatric services. Under Section 4 of the 2006 Act, which is referred to in the clause, these are for persons,
“liable to be detained under the Mental Health Act 1983”,
and requiring,
“treatment under conditions of high security on account of their dangerous, violent or criminal propensities”.
I stress the “or” and that it is “propensities”, not necessarily actions. In many cases this may be in the interests of the patient’s health or safety and not, as I understand it, simply a response to criminal activity where there has been a prosecution.
Clause 49 is about immigration detention facilities. Although we have done so, I will not spend time now on the fact that prisons are still used for immigration detention. We have had considerable debate about immigration detention recently in the context of what is now the Immigration Act, and it is accepted, I hope, that we are talking about administrative detention, not imprisonment with a view to removal, or even an acknowledgement that detainees should be removed. We discussed the large number of detainees who move into the community. There is a lot to be said—a lot was said and probably more could have been said—about the conditions in immigration detention centres. Exposure to the risk of having communications intercepted needs justification on the record, not least because of the febrile atmosphere at the moment around immigration, with immigrants too often cast as bad people. That is why we are concerned about the two clauses standing part.
I am very grateful to the Public Bill Office, which spent a lot of time helping me draft Amendments 71 and 72, which relate to tracing what are “relevant rules” for the purpose of Clause 49. Instead of trying to take the Committee through the rather complicated drafting of Amendment 72, I will just make the overall point, which is that there should be transparency: it should be clear in the regulations, which we are saying should be affirmative, that the rules apply for the purposes of interception provisions.
That, in a nutshell, is what I am driving at in that amendment. I do not wish to insult the Public Bill Office, which as I say was splendid, and the buck stops with me if this is not the way to do it, but I would like to be assured that the relevant rules have been made—I think we are talking about existing rules—for the interception provisions. As I say, this is a point about transparency, or clarity, and one it is probably quite difficult to discuss across the Chamber, but I would like to be assured that some way will be found to achieve that end. To go back to the overall point, that is why we are objecting to the clauses—for the purpose of this debate at any rate.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Clause 48 maintains the position set out in RIPA that interception is lawful in certain circumstances in psychiatric hospitals. The clause sets out that interception is lawful if it takes place in any hospital premises where high-security psychiatric services are provided and is conducted in pursuance of, and in accordance with, any relevant direction given to the body providing those services at those premises.
While the clause provides that the interception is lawful, it is the relevant direction under the National Health Service Act 2006, the National Health Service (Wales) Act 2006, the National Health Service (Scotland) Act 1978, or the Mental Health (Care and Treatment) (Scotland) Act 2003, that sets out how and when the interception may be conducted—that is not a function of this Bill.
Clause 49 provides that certain interception carried out in relation to immigration detention facilities is lawful. The Immigration and Asylum Act 1999 contains powers for the Secretary of State to make rules for the management of immigration detention facilities, and Clause 49 provides that interception carried out in accordance with those rules will be lawful. At present, rules have been made only in respect of immigration removal centres—the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees. It is right that officers should be able, for example, to intercept attempts to send controlled drugs or other contraband material into particularly sensitive and secure environments.
Contrary to speculative claims, this power can never be used to determine the outcome of any person’s asylum claim. Again, the precise circumstances in which interception may take place in immigration detention facilities are not a matter for the Bill. To be clear, the purpose of this clause is not to determine rules relating to the management of immigration detention facilities. The purpose of the clause is simply to make clear that conduct authorised and regulated under existing legislation—specifically, the Immigration and Asylum Act 1999—would be lawful.
Rules made under the 1999 Act about the regulation and management of detention facilities are subject to negative resolution, as specified in the Act and as agreed by Parliament. Such rules in relation to interception would be based on the clearly legitimate purposes already contained in the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees, as I explained.
I hope the noble Baroness will accept that the amendments are unnecessary and that the clauses should stand part of the Bill.
Baroness Hamwee
My Lords, I have found it difficult throughout the Bill to accept that something is necessary just because it is in RIPA or is currently in effect. I am afraid I gave up chasing through the references in Clause 48—I thought my iPad was going to give out on me if I asked www.legislation.gov.uk any more questions on Sunday morning. I should have pursued this, and for that I apologise to the Committee. I think I am reassured by the explanations I have. I will go away and read the record, but I am grateful to the noble Earl.
Baroness Hamwee
“Evidence
(1) The Secretary of State may make regulations enabling material obtained by interception by lawful authority to be put forward as evidence in court proceedings.(2) Regulations may not be made under subsection (1) unless the Secretary of State has consulted such persons as the Secretary of State considers appropriate.(3) Consultation must, in particular, address mechanisms relating to the disclosure of information on proceedings and their general conduct.”
Baroness Hamwee
In moving Amendment 81, I shall also speak to Amendment 239. I am not proposing, now, a facile change in the rules of evidence—but given the subject matter of the Bill, it might be a little odd not to explore the issue of intercept as evidence a little. Amendment 81 contains an enabling clause; enabling clauses go a bit against the grain, but for this purpose I think one is appropriate. It would require consultation and the affirmative resolution—but this is a probing amendment.
I know about the concerns that intercept as evidence would be massively expensive, because of the entirely proper rules of disclosure of evidence to the defence and the prosecution. Intercepted phone calls would not just be monitored for intelligence, with rough notes made and conversations only partially transcribed; this would mean a huge amount of transcription, and maybe translation as well, plus storage and indexation. Disclosure could, I accept, have operational implications, through disclosing techniques and the capacity of the agencies.
On the other hand, intercept evidence could significantly influence the outcome of a trial, but at the moment is simply unused. Lord Lloyd of Berwick said:
“We know who the terrorists are, but we exclude the only evidence which has any chance of getting them convicted”. —[Offcial Report, 19/6/00; cols 109-10,]
So we spend a lot of resources on spying on those implicated in organised crime and terrorism, but we cannot prosecute them or prevent further crime. Other common law countries use such evidence. I am aware that their legal systems are said to be “less demanding”, but does that not suggest that we should not abandon the idea?
The right to a fair trial raises the issue of all evidence being available to both prosecution and defence. The prosecution has the advantage of being aware of evidence but not using it, and that puts the defence at a disadvantage. Further, I understand that a ban applies only to interceptions in the UK. Recordings and transcripts of intercepted calls made in other countries are used, for instance in prosecutions for drug trafficking. Nor is there a bar on introducing evidence of phone calls made from prisons. I believe that the Ian Huntley Soham case featured such evidence. One can also use a recording from a hidden bug as evidence, but one cannot use interception as evidence.
It is argued that our system of public interest immunity could be applied to protect the details of investigative techniques—the subject of the concern that I raised a moment ago. The Privy Council’s review on that issue, which reported in 2008, concluded that it would be possible to provide for use as evidence by developing a “robust legal model” with public interest immunity as the basis, which would be human rights compliant. I appreciate that that review was the seventh report to Ministers in 13 years, so this matter has not gone unexamined.
However, we are now in a position whereby our criminal justice system cannot accommodate what will often be the best evidence in a case, so cases that should be prosecuted may not be. Given advances in technology—and those no doubt to come—it must be right to keep the issue on the agenda, which is what the amendment seeks to do. I beg to move.
Lord Strasburger
My Lords, I have a question for the Government. Am I correct in believing that evidence derived from equipment interference is permitted to be used in court? If so, could not equipment interference lead to an equally large and costly process of evidence-gathering? Why is there a difference between the two sources of evidence?
Lord Keen of Elie
Because it has been established as a matter of evidential law over many years that it can be admitted. Therefore, adequate provision is in place for its admission as evidence.
Baroness Hamwee
I am not sure that my noble friend will feel that he has had further enlightenment, but I have to say that I agree with pretty much everything the noble and learned Lord said. The one thing he said which I could not really have known is that circumstances have not changed—I think that was his term. The amendment is by no means ideal, but we have taken only nine minutes on it, which in the context of the Bill is but a blink of an eye, and it was right to put on record our concern that the issue should not be lost sight of. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I have Amendments 86 to 88, 244 and 245 in this group, which takes us to the provision for payment towards compliance costs. Under Clause 222(1):
“The Secretary of State must ensure that arrangements are in force for securing that telecommunications operators and postal operators receive an appropriate contribution in respect of such of their relevant costs as the Secretary of State considers appropriate”.
As I read that, I wonder why it needs to be “an appropriate contribution” and such as the Secretary of State “considers appropriate” of their relevant costs. That is belt, braces and some other form of security.
Amendments 86 to 88 taken together provide for cover for all the operators’ costs, but those costs should be assessed objectively, and I feel quite strongly that the arrangements should be in place before the operational parts of the Bill are in force. The audit provision—the subject of the amendment of the noble Lord, Lord Rosser, and the noble Baroness, Lady Hayter—would remain, as is right.
I feel strongly about this because however much good will there is on both sides, if you do not get an agreement in place before you get on with the next stage of the operation, there is always the danger that you will not satisfy the parties. It is important not to leave the matter open.
There has been a lot of discussion of the quantum. The Minister in the Public Bill Committee said that 100% of the compliance cost will be met by the Government. He clarified that the estimated costing of £174 million—which illustrates why it is important to get the Bill right—
“is not a cap, but an estimate”.—[Official Report, Commons, Investigatory Powers Bill Committee, 3/5/16; col. 632.]
The Science and Technology Committee, reporting on the Bill, recommended:
“The Government should reconsider its reluctance for including in the Bill an explicit commitment that Government will pay the full costs incurred by compliance”.
It is a short point regarding an awful lot of money and potential exposure for the operators, so we are concerned to get the matter pinned down. I beg to move.
Baroness Hayter of Kentish Town
My Lords, as was mentioned, Amendment 89 stands in my name and that of my noble friend Lord Rosser. Clause 222(6) contains what is to me the unusual phrase:
“Different levels of contribution may apply for different cases or descriptions of case but the appropriate contribution must never be nil”.
“Must never be nil” is a slightly strange phrase, especially given that someone who, until a few hours ago, was the Home Secretary but is now the Prime Minister said on Second Reading:
“I reiterate … that … 100% of the compliance costs will be met by the Government”.
She was asked to provide a long-term commitment for that and said,
“we are clear about that in the Bill … it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue”.—[Official Report, Commons, 15/3/16; col. 821.]
However, being clear about the contribution which must never be nil is not what I call clarity.
Amendment 89 simply takes the then Home Secretary’s words as used in Parliament that the Government would meet 100% of the compliance costs, with full cost recovery for communication service providers, which, after all, have to implement the legislation. It is important to write it into the Bill to ensure that the financial impact of the legislation is transparent, not hidden, and to give forward confidence to those companies, whose activity in this country is already a little wobbly thanks to Brexit, that they will not at some point be hit by unexpected and unavoidable costs.
As was mentioned, Amendment 89 also allows for a proper audit to ensure that operators do not provide unduly high costings. Obviously, they can make no profit from these procedures because they are a departure from normal business, but they need those costs to be met. Cost recovery could be significant, but the Bill does not seem to put any limit on it at present. We will depend on the good will of these companies to make the Bill effective. We should not charge them for their willingness as well.
Earl Howe
My Lords, this amendment seeks to ensure that communications service providers are fully reimbursed for their costs in connection with complying with obligations under this Bill, and that arrangements for doing so are in place before the provisions in the Bill come into force. It is, of course, important to recognise that service providers must not be unduly disadvantaged financially for complying with obligations placed upon them. Indeed, the Government have a long history of working with service providers on these matters. We have been absolutely clear that we are committed to cost recovery. I want to reaffirm to the Committee a point that my right honourable friend the Security Minister made very clear in the other place: this Government will reimburse 100% of reasonable costs incurred by communications service providers in relation to the acquisition and retention of communications data. This includes both capital and operational costs, including the costs associated with the retention of internet connection records. I hope that that assurance is helpful.
The key question that this Committee needs to consider is whether it is appropriate for the Government of today to tie the hands of future Governments on this issue. I wonder whether, on reflection, the noble Baroness thinks it right to press for that. That does not mean that we take our commitment lightly or that future Governments will necessarily change course. Indeed, I suggest that it is unlikely ever to be the case; for example, the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000 and so has survived Governments of three different colours or combinations of colours.
This Government have been absolutely clear that we practised cost recovery and we have been consistent in our policy for a very long time. Indeed, this Bill adds additional safeguards requiring a data retention notice to set out the level of contribution that applies. This ensures that the provider must be consulted on any changes to the cost model and also means that the provider would be able to seek a review of any variation to the notice which affected the level of contribution. The Government already have arrangements in place for ensuring that providers receive appropriate contribution for their relevant costs without delay, so the amendment that seeks to ensure that they are in place before the provisions come into force is, I suggest, unnecessary. Accordingly, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I wrote down a number of phrases, including “not unduly disadvantaged”. In the light of the absolute, clear commitment to full cost recovery, I wonder whether “unduly” is the right term. I also wrote down “100% of reasonable costs” that ought to be covered by the audit provision. The noble Earl has just referred to an appropriate contribution for relevant costs. I am sure he will understand where I am going with these terms.
The noble Earl asks whether it is appropriate to tie the hands of future Governments. I would say that in this instance it is appropriate, because a future Government can bring forward future legislation and that would be the way to do it—not to seek to resile from what everyone regards as a very important commitment given, but where there is a detraction from it in the terminology of Clause 222. I do not know whether the noble Earl is in a position to make a comment about “unduly” now. I suspect he is not. It is a rather unfair question from me.
Earl Howe
We are clear that it is important to ensure that communications service providers are neither advantaged nor disadvantaged by obligations imposed under the Bill. The Government will maintain, therefore, their long-standing policy of making a reasonable contribution to costs, but it is unthinkable that the Government would seek to place any unreasonable financial burdens on a company simply for complying with a warrant. So we are talking about reasonable costs. That is surely right. It is not appropriate for the taxpayer to subsidise unreasonable costs, but as I have said, we have made a commitment to reimburse 100% of reasonable costs incurred by the communications service providers, and that includes both capital and operational costs.
Baroness Hamwee
It occurs to me that a happier term might have been “proper costs”. I am certainly not arguing that the CSPs should make a profit out of this, nor that they should feel that they have got a credit card which they can max out just because they are not particularly bothered. That is not the thrust of the amendments. I have made our point as firmly as I can. The noble Earl will understand from what I am saying that I remain somewhat concerned, but this may be a matter for later. I beg leave to withdraw the amendment.
Investigatory Powers Bill
Baroness Hamwee Excerpts(8 years, 4 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, we come now to the general duties in relation to privacy, which at least two noble Lords have referred to as the backbone of the Bill. I acknowledge, from these Benches, how much progress has been made with this issue and how welcome Clause 2 is. However, that does not deter us from being ambitious to pursue it to what we might see as perfection.
Amendment 5 would provide that any decision or action undertaken under the Act by a public authority should be subject to Clause 2. If it is not to apply, the Government should explain and justify that non-application to the Committee. I appreciate that this clause has a rather different genesis from most of the Bill. I hope it does not sound arrogant—it is certainly not meant to—if I say that it is an exceptionally well and helpfully drafted Bill. It has more definitions in it, more easily found, than any other Bill that I can recall. Most of it is extremely clear, but I have a problem with some of the content and drafting of this clause. This may be because it has come together through a different route, because of the input from debate in the Commons and outside.
If amended by Amendment 5, Clause 2(1) would not be specific about where the duty applies. I ought to give an example, although this might not be a very good one because a telecoms operator is not a public authority. It occurred to me that although an operator would have a duty to comply with a notice, under Clause 62, they should not have to make the assessment in the way the clause requires. Even if that is a bad example, we could be told that Clause 2(3) would apply to that and that it is not relevant. I will come back to that, but one should say so. Clause 63, the next one on from the one that I picked as an example, is about the filter. I struggle to see whether that comes within Clause 2(1)(d). It should. My overall question is whether Clause 2 is as stiff a backbone as it can be.
Amendments 6 and 8 deal with a provision to which the noble Lord, Lord Janvrin, has referred, which is whether what is sought to be achieved could reasonably be done by “other less intrusive means”. My amendments would make that provision stand alone, not subject to the discretionary “have regard to” which introduces Clause 2(2). This is particularly important in connection to privileged communications, and indeed it came up in a meeting with the noble and learned Lord, Lord Keen, on Thursday, which, when we were assured in the context of legally privileged material that if a less intrusive means could be used it would be, was very helpful. This was what made me think about “have regard to”. My noble friend Lord Lester used the term “rubbery” of “have regard to”. In previous incarnations of this reference to “less intrusive means” there has been an absolute rather than a discretionary requirement, so I would be grateful for help on this, about which I feel particularly strongly.
Amendments 7, 10 and 11 are about the hierarchy, if one can say that there is a hierarchy within Clause 2, of which considerations are subject to what. Those taking decisions might welcome having some scope for consideration, but if the clause is circular—there have been times when I have thought that it is—it is our job to straighten it out. Clause 2(2) is subject to Clause 2(3). Clause 2(3)(a) says that the duties apply in so far as,
“they are relevant in the particular context”.
I cannot quite decide if those words are necessary. If a duty is not relevant, does one have to say so? Also, in particular, does “relevant” introduce an element of judgment, which would weaken the application of this?
Clause 2(3)(b) says that the duties “are subject to” particular considerations listed in Clause 2(4). Clause 2(4) takes precedence over Clause 2(2)—or does it? In addition Clause 2(4) suggests that there are considerations that are not listed. Given the importance of this clause I think that this should be addressed. To the extent that noble Lords have managed to follow that—I am not entirely sure that I did throughout—I hope that I have at least demonstrated that we think that there are potential problems in the construction of the clause.
Amendments 9 and 13 would make the Human Rights Act overarching. I might be told that because it falls within Clause 2(3)(b), to which Clause 2(2) is subject, it is not necessary to separate it out. If that is so, it reinforces the arguments that I have just made on the previous clutch of amendments. We might be told that not everything in the legislation is absolute and that certain rights are qualified, but my amendment would not affect that. I am really after clarity and certainty. The Human Rights Act is so important in this context that it should be expressed as applying in its own terms and not be demoted to being a particular consideration.
Earl Howe
My Lords, I am grateful to the noble Lord for expressing his expert opinion so clearly. I can undertake only to study carefully what he has said between now and Report. Clearly, the Bill has been drafted by expert hands, but I am the first to say that there is no monopoly of wisdom on the Government’s side, and I am sure we need to taker full account of what he said.
Baroness Hamwee
My Lords, one of the things that we are saying is that because the Bill has a mixed heritage, it is perhaps not as clear as it could be and does not have the benefit of the expert work to which my noble friend referred. I am clearly going to have to read very carefully what has been said, but I want to make a few comments now.
First, I am grateful to the noble Viscount, but I do not think what he was saying was quite as the noble Earl put it with regard to the word “may”. We need to come back both to the “may” and the “other considerations” in particular and to the relationship between the subsections. That fact that the list in subsection (4) is not exclusive makes the matter even more difficult.
I obviously do not want to go over all the ground again. With regard to the privacy and civil liberties board, it was of course a construct—a compromise—but my noble friend Lord Strasburger’s point about somebody having the responsibility to make sure that privacy and civil liberties are right at the top, immovably in the agendas that the Government may have, is an important one. I, for one, would welcome something more than was in the Act.
I agree that listing where the duty bites does help clarity and transparency, but I had a difficulty in being completely certain that it bites on everything that I think it should; the filter in Clause 63 was my example. If the filter is part of granting, approving—obviously not—or cancelling an authorisation, that is fine, but it should be clear. I am afraid I am not hugely persuaded by a code of practice, since it is not primary legislation. In fact, I think the Minister said that we should have regard to it. If it provides that these matters are absolute, rather than discretionary, then the codes of practice will not be consistent with the primary legislation, and that will be a bad thing.
I come back to whether this clause has been invented here, or wherever it has been invented. I will offer to supply the hot towels for everybody—I might even provide cake—but this is a provision that would benefit from further discussion. I certainly do not offer not to bring it back on Report—I might if we can get to somewhere that satisfies all of those who are clearly concerned before then—but for the moment, I beg leave to withdraw the amendment.
Immigration Bill
Baroness Hamwee Excerpts(8 years, 7 months ago)
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Lord Green of Deddington (CB)
My Lords, I am rather puzzled. If conditions for asylum seekers are so difficult in this country, why are there literally thousands of people camped around Calais who appear to want to get into this country in order to claim asylum? And why is it that, of those who claim asylum, 60% have already been working before they make their claim?
Baroness Hamwee (LD)
My Lords, today is a day for pithy comments rather than rehearsing arguments that I have already made on this subject, which are on the record. Amendment 59B is different from the previous amendment in that an olive branch has been offered in the shape of nine months rather than six months. We have been told that the delays in the system are historic and that the system is now under control, so it seems that there should not be a problem with six months —but there we are.
I support in particular the noble Lord’s comments about the shortage occupation list. It would be inappropriate to go through all the jobs on that list but without wanting to be too frivolous, I noticed that, for instance, string players are on the list but there is no mention of players of wind or brass instruments. That is the sort of detail and the sort of thing that really makes you wonder about the policy.
The nine months proposal would be in line with almost all other countries in the EU, so there would be no pull factor. Having spoken up and given my support to the noble Lord, I will sit down.
Lord Rosser (Lab)
The amendment your Lordships sent to the Commons on allowing asylum seekers the right to work after six months, like the other amendments carried in this House against the Government’s wishes, did not find favour with the Government or indeed receive any indication of movement by them on the issue.
As has been said, at present in most cases asylum seekers are not allowed to work in the UK unless they have waited over 12 months for an initial or subsequent decision, and are not considered responsible for any delay. Those who do qualify for the right to work under these restrictions are then able to apply only for jobs on the shortage occupation list. However, we are currently reviewing this issue as part of a wider policy review and consequently we will not be supporting the Motion sending the matter back again to the Commons—albeit now saying nine months rather than six months.
Lord Hylton (CB)
My Lords, it is a pleasure to see the noble Baroness, Lady Hamwee, in her place today. She understands these issues from her experience in central London and has spoken about them on previous occasions.
I am grateful to the noble and learned Lord, Lord Keen, for seeing me yesterday to discuss domestic workers and the tied visa. I also thank the noble Earl for what he said in his introduction to this response, and I am grateful to the Immigration Minister for saying that,
“when an overseas domestic worker has been referred into the national referral mechanism during their initial six-month stay, their permission to take employment will continue while their case is assessed”.
That is helpful, and will prevent destitution. However, the Minister went on to say that,
“the measures will ensure that, when a worker arrives”—
I emphasise that word—
“in an abusive employment relationship, they can leave it with the certainty that they will be able to continue working”.—[Official Report, Commons, 25/4/16; col. 1190.]
I must therefore ask: does that cover cases where the abuse or exploitation starts only after arrival here? I trust that the answer is yes and that the need to enter the NRM to get protection will be made widely known at information meetings before and after arrival, and to the relevant statutory and voluntary people here.
If the NRM application fails and the worker has to leave this country, can she know in advance that she will be able to return home if she wishes and not be left stranded somewhere in the Middle East?
Those two points are important. I have given notice of them and I look forward to positive replies.
Baroness Hamwee
My Lords, the noble Lord, Lord Hylton, has done a sterling job on this issue, as have others on previous such Bills. Of course, I acknowledge that the Government have made some important changes, but I have to say that I remain persuaded by the report of James Ewins—a report commissioned by the Government themselves.
The Government’s amended policy depends in particular on the national referral mechanism functioning well and there being easy access to it. I summed up in my own mind that the Government’s approach reflects prosecution trumping protection—and I do not say that lightly. The Government are concerned that if overseas domestic workers could change employers and significantly prolong their stay, they would be less likely to report abuse, and enable an employer to abuse others. I do not accept that premise in the context of what we know about this situation. The workers will remain effectively tied to their employers. They will be deterred from escaping because of the quite complex and conditional rights under the new regime, or indeed they may go underground. They need to be informed of clear, concrete rights which are readily understood, and they need to be confident about employing those rights.
I, too, have questions for the Minister. First, can he give any news of the improved functioning of the national referral mechanism, which we know has been the subject of considerable attention and new ways of working? Secondly, I understand that Mr Ewins is to be asked to make a further report. I am not sure whether, in the light of the acceptance or otherwise of his first report, he has accepted that job. But if it is to happen, when will it happen, and will it cover the use of the national referral mechanism by overseas domestic workers?
Lord Green of Deddington
My Lords, I do not doubt for a moment the good intentions of those who have put forward this amendment. The Government have moved a very long way to make sure, as much as they can, that overseas domestic workers are not exploited. Everyone is bound to concur with that.
The difficulty I have is that this amendment is not confined to domestic workers who are actually subject to abuse: all would be entitled to leave their employer, for any reason. Well, that is a considerable concession. However, if I have read the amendment correctly, they can stay here for not less than two and a half years. That creates a gaping hole in the immigration system. We are talking here about 17,000 people a year. Of course, word will spread very quickly that you can get to the UK on a domestic workers visa, walk out on your employer, stay here for two and a half years and then almost certainly go into the black economy and not go home. That will lead to a huge gap in our system, and I have to say that I think it is very unwise.
Baroness Hamwee
My Lords, I very much support the noble Lord, Lord Ramsbotham, in his Motion and I hope noble Lords will accept that the fact that I do not repeat or expand on what he has said does not in any way reduce my enthusiasm for it.
A duty to consider bail is certainly welcome, compared with the current situation, but it is second best by some distance. But the automatic reference is to be only after six months. My Amendment 84B, proposed in Motion C2, has an awful lot of words but only two words that are different from the Government’s amendment; that is, it changes “six months” to “56 days”, which noble Lords will readily appreciate is twice 28 days—another of the olive branches coming from this part of the Chamber.
Rather than taking the time of the House to discuss the concerns about immigration detention that your Lordships have heard from me on previous occasions, I will quote a little from the report of the all-party group of which I, the noble Lord and the noble Baroness were members. The then Chief Inspector of Prisons, Nick Hardwick, was quoted with regard to his concerns about the way in which reviews were carried out. He said that,
“reviews that happen, if they do happen, are often cursory, and … the requirement that there should be a reasonable prospect of someone actually being removed if they’re going to be detained isn’t met. And an example of that is that at least a third, and getting on for half, of all detainees are released back into the community. And this poses the question: if they’re suitable to be released back into the community at that point, why do they need to be detained in the first place?”.
The report went on to say:
“This echoed a finding of the joint thematic review of immigration detention casework carried out by Nick Hardwick and John Vine, the then Chief Inspector of Borders and Immigration. In their report they say: ‘There was inconsistent adherence by case owners to the Hardial Singh principles that removal of detained people must occur within a “reasonable period”. Many monthly progress reports appeared to have been provided as a matter of bureaucratic procedure rather than as a genuine summary of progress, and some detainees found them difficult to understand’”.
Judicial oversight is a different animal from internal progress reports and it is important. That is why I would want to see automatic judicial oversight at a much shorter point than six months, for the reasons that the noble Lord, Lord Ramsbotham, gave in moving his amendment.
Turning to the guidance with regard to vulnerable people, Stephen Shaw’s report is very thorough and long. I continue to be concerned that if the guidance on the detention of vulnerable people, which we already have, did not work well last month or last year, will it work well next year?
Noble Lords may have received briefings from the organisation Freedom from Torture, which was then the Medical Foundation for the Care of Victims of Torture. I would like to put the questions which it has posed to the Minister. That organisation, along with the Helen Bamber Foundation and other organisations, have arrangements in place with the Home Office for the assessment of certain persons claiming asylum. Can the Minister confirm, first, whether the safeguard requiring the release from detained asylum processes of those accepted for assessment by those organisations for their medico-legal report services will be continued? Secondly, and quite obviously, can he confirm whether those two organisations and other relevant organisations will be consulted during the development of the adults at risk policy?
Lord Trefgarne (Con)
The noble Baroness is quoting at length from documents which none of us has seen elsewhere. She and the noble Baroness, Lady Lister, have also been quoting at length arguments which have been repeated ad nauseam in this House and in the other place. May I express the hope that she will shortly bring her remarks to a conclusion?
Baroness Hamwee
My Lords, the questions that I asked were put to me this morning. The quotation that I read was about three-quarters of one column, on pages which are of two columns; the report continues for getting on for 70 pages. I accept that the House wishes to get on with a decision, but I do not believe that I am raising new points. I could have repeated old points at some considerable length.
I now come to the new amendment which we have, in the name of the noble Baroness, Lady Lister. She mentioned healthcare at Yarl’s Wood. The Minister said in the Commons yesterday that,
“Yarl’s Wood, and its links with the health service in Bedfordshire, provide an effective join-up”,—[Official Report, Commons, 25/4/16; col. 1195.]
for the care of pregnant women. I have to query whether Yarl’s Wood will ever become suitable for that care.
Amendment 85D, which I have tabled on the second set of issues, would delete subsection (4) of the proposed new clause in Amendment 85B. Again, the amendment as it is printed appears to be very long, but that would be the only change. That subsection in Amendment 85B provides that:
“A woman to whom this section applies who has been released following detention … may be detained again under such a power in accordance with this section”.
My amendment is a probing amendment to seek to understand how this will be applied and how the time limit will operate. As the noble Baroness has described it, it looks like a cat and mouse provision, and in a democratic institution where we are reminded about suffrage every day we walk around, I hope that that is not the case. I look forward to the Minister expanding on this if he can. Can he confirm that, when that paragraph talks about detention “under such a power”—which is a power to detain—“in accordance with this section”, it means “subject to” this section? I cannot think that it means anything else, but it struck me as a slightly curious way of describing it.
The Lord Bishop of Leeds
My Lords, I was recently in northern Iraq, visiting internally displaced people and Syrian refugees. In a meeting with the United Nations office for the co-ordination of humanitarian aid, we were told that despite the generosity promised by many international donors, only 9% of the money had actually got through. That was not specifically applied to the UK. I do not know how much of the UK’s promised aid has gone but it was 9% overall. So when we hear about the amount of money that has been promised, it does not tell us how much has been delivered.
The second background point I would make is that in meeting refugees and internally displaced people, it became clear that there is a divide by generation. The older people still dream of going back home; the younger people and their children do not believe that they have a home to go back to. In the areas where ISIS has been, in many cases it has simply destroyed everything. There is no infrastructure. There are no homes or schools. What has been left has often been booby-trapped. So what does it mean to say that we want to help all these people go home, when home may no longer exist? The communities where for generations they lived together have now been destroyed because of the violence and what has gone on.
My fear in this is that we are going to have tens of thousands of children whose experience of not being welcomed when they are genuine refugees, who have shown extraordinary resilience to leave and get to where they have, will not forget how they were treated. If we want to see resentment or violence among the next two generations in that part of the world, the seeds are being sown now. I feel that the humanitarian demand outweighs some of the more technical stuff that we have heard. I applaud the Government for what they are doing, particularly in relation to the camps out in the Middle East, but they are not addressing the question on our doorstep. I support the amendment.
Baroness Hamwee
My Lords, like others I recognise the contribution that the Government are making in money and personnel, so far as those are being sent. But I regard the dangers of which we have heard—the situation in which unimaginable numbers of children have been caught up—and our moral responsibility as outweighing everything. The dangers include the risks of trafficking and exploitation. Was that not precisely what the previous Government set out to counter in their flagship legislation? Prevention is the best response so relocating, supporting and welcoming children would contribute to that objective. The Minister says that this amendment is not the best or the most effective way but it is not an either/or. Whatever other countries do or do not do, the UK must not do just what is better than others but what it knows is right. This amendment is in the best interests of the children who are the subject of it.
Lord Rosser
I will be brief, since the arguments for this amendment have already been powerfully made. I also endorse the comments made by my noble friend Lord Dubs and other noble Lords about the measures that the Government have already taken. But while on the one hand the Government say, rightly, that we need to play a role at the heart of Europe, on the other they decline to assist over taking in unaccompanied refugee children in Europe who have fled from war, conflict and persecution and are already alone and at risk, simply because they are already in Europe.
Europol estimates that 10,000 unaccompanied refugee children went missing in Europe last year and we know that children are being exploited. The Government maintain that taking in any unaccompanied refugee children from among those already in Europe would increase the so-called pull factor—an argument for which there is no firm, hard evidence one way or the other. But at the heart of the unproven pull factor claim is a policy stance that we should leave all unaccompanied refugee children already in Europe to their fate. That is an unacceptable stance and if my noble friend decides to put his amendment to a vote, we will support him in the Division Lobby.
Immigration Bill
Baroness Hamwee Excerpts(8 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
“Information
(1) The Immigration Act 2014 is amended as follows.(2) After section 21(3) insert—“(3A) P may apply to the Secretary of State for written confirmation that the Secretary of State—(a) Has granted, or(b) Will grant,Permission to P in accordance with subsection (3).”
Baroness Hamwee (LD)
My Lords, I beg to move Amendment 1. It is unusual, of course, to have a substantive amendment at Third Reading, and I suspect that it is more unusual for that amendment to amend an Act that is already on the statute book. However, noble Lords will be aware that the amendment would not be before us if it had not got past the eagle eyes of the Public Bill Office. The amendment would iron out what seems to be a contradiction about the position as between a letter from the Minister, the noble Lord, Lord Bates, in response to a request under the Freedom of Information Act, which came from the Home Office.
Your Lordships will recall that this Bill extends provisions regarding any tenant’s right to rent, but those who are caught up in this situation are, not entirely, but very often, immigrants. On Report, the noble Baroness, Lady Lister, raised what she called the “Lord Avebury point”. I am very happy to take any opportunity to refer to my late friend Lord Avebury, whose record on these issues I strive to match but will never attain. The point, as she summarised it, is that asylum speakers whose presence is not illegal but who do not have documentary proof are unable to show landlords that they have a right to rent. The noble Lord, Lord Bates, said that he would write to the noble Baroness, and he did so, copying me. He wrote:
“It remains the case that migrants who do not understand whether they may qualify for permission to rent may contact the Home Office to establish whether this is the case”.
That was welcome, but earlier in the same month the Home Office, replying to a request under the Freedom of Information Act, said three times:
“there is no application route for permission to rent”.
It also said:
“It is not a question of a migrant making an application for permission to rent, but rather a status the Secretary of State may consider affording on a case by case basis”.
To explain the problem a little further, Home Office guidance envisages that permission to rent will be granted in cases such as: asylum seekers; refused asylum seekers; families co-operating with the Home Office’s family return processes; individuals on criminal or immigration bail; those within the Home Office voluntary departure process; victims of trafficking or slavery; and individuals with an outstanding out-of-time immigration application, in-country appeal or judicial review. It is also necessary to grant permission to rent where to fail to do so would violate an individual’s human rights.
However, the only way to seek confirmation that a discretionary right to rent has been granted is for the landlord, not the tenant, to request confirmation from the Home Office. During the passage of this Bill, we have debated the processes in place for that and the operation of the checking service. We have also debated the problems about the right-to-rent scheme, which include potential discrimination and landlords who, quite understandably, want to get on with renting their property and will let to those whose status is the most easily ascertained. A landlord may not tell a would-be tenant why he is refusing a tenancy, and the individual might not be aware that he has been denied permission to rent. There is no mechanism to allow an individual to clarify the position, correct any mistakes or give additional evidence. There is no obligation for landlords or agents to request a check from the Home Office. I am sure that almost all noble Lords know, if not personally, then through acquaintance with people who are seeking to rent property in a very difficult market, that the situation for every would-be tenant is emotional and a matter of considerable stress and anxiety and that many people have to go on looking without a good outcome.
The 2014 Act, which is the subject of the amendment, provides at Section 21(3) that a person,
“is to be treated as having a right to rent … if the Secretary of State has granted”,
him,
“permission for the purposes of this Chapter to occupy premises under a residential tenancy agreement”.
My amendment would allow an application for confirmation that the Secretary of State has granted or will grant permission in accordance with the subsection that I have just read out. This is not an academic matter, as I have said; I believe that the noble Baroness, Lady Lister, will share with your Lordships the case of a family with two young children, living in this country legally, who, through circumstances that I suspect are not at all unusual, found that they could not prove their right to rent and therefore found themselves homeless, with their possessions in store and the family in limbo.
My amendment does not seem to be inconsistent with the response to the FOI request because, although I would like to, I am not seeking an application for permission to rent, nor would it be an application that would imply the whole process of going through seeking permission. It would simply be an application to find out whether the individual himself had, or was due to have, permission. I hope that we can clear this up because a lot of people will be affected by it. I beg to move.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Amendment 1, tabled by the noble Baroness, Lady Hamwee, would, as she explained, provide that a person disqualified by virtue of their immigration status may apply to the Secretary of State for written confirmation that permission to rent has been or will be granted to them. The amendment would amend the Immigration Act 2014, which introduced the right-to-rent scheme. It would work in conjunction with the existing provision, which states that a person who is otherwise disqualified from renting premises as a result of their immigration status is to be treated as having a right to rent where the Secretary of State has granted them permission to occupy premises under a residential tenancy agreement.
I hope that I can persuade the noble Baroness that the amendment is unnecessary and potentially even a step backwards. The Secretary of State is already able to grant permission to rent to people who are otherwise disqualified from renting. This may include migrants without leave who have sought asylum, families with minor children who are in the family returns process or those who face a genuine obstacle to leaving the UK. A migrant may obtain confirmation that they will be afforded such permission by contacting the Home Office, and all a landlord need do then is to contact the Home Office landlords’ checking service with the migrant’s Home Office reference number to confirm that they may rent to that migrant. Following that process will give the landlord a statutory excuse from any civil penalty under the right-to-rent scheme.
Very importantly, this system allows for a swift process, without the need to require a migrant to make a formal application or for them to await written confirmation through the post that they may rent. Our experience since the right-to-rent scheme was introduced on 1 December 2014 is that this process works well. For those reasons, I invite the noble Baroness to withdraw her amendment.
Incidentally, there is no inconsistency between the FoI response and the letter from my noble friend Lord Bates. As I explained, a migrant may already contact the Home Office in order to establish whether they will be granted permission to rent. Existing arrangements are straightforward and work well. I should also mention that the Home Office is in the process of revising its published guidance in response to concerns raised during previous debates. I have no doubt that it will factor in the points made in this debate as well. Once that is done, the guidance will set out even more clearly how a migrant may contact the Home Office. But I suggest that requiring that they make a formal application and then have to await written confirmation may lead to unnecessary delays and in fact would serve no useful purpose.
Baroness Hamwee
My Lords, I wish that I were persuaded. The letter from the noble Lord, Lord Bates, said that migrants,
“may contact the Home Office to establish whether this is the case”.
The clear implication there is that the migrant himself may establish the position, not ask the Home Office to make sure that, if and when a landlord inquires, the landlord is given that information.
Of course, I am aware of the landlord’s statutory excuse. I do not want to be too harsh, but I wonder whether the person in the Home Office who has been drafting this has had any recent experience of trying to rent a property. Not that long ago, on the question of the rollout of the 2014 Act, two or three Members of this House explained very clearly that as landlords they, and indeed most landlords, would want to get on with letting and not have gaps in that letting. The information that I and other noble Lords have received is not that the situation is working well—that is not the position. I am glad to hear that there has been some revision of procedures, but it seems to me that by denying that there is a problem, there is denial around looking at how to solve that problem.
It seems to me that this is not considered a big deal. Perhaps I can simply urge the Minister to urge the Home Office to take this as a very serious concern. If there is a different way of assisting tenants—and my goodness, this House is spending a lot of time talking about the housing crisis at the moment—and making the whole process that much easier, avoiding the concerns about discrimination that we have debated in this context at some length, then I urge him to do that. I am clearly not going to make any progress on this now, but I will not let it go: I will keep asking questions about it.
Earl Howe
My Lords, I am happy to give the necessary undertaking to the noble Baroness. Indeed, I am sure she will have gathered from what I said that the whole purpose of the scheme we now have is to have a straightforward and rapid process for people to follow, rather than a more labyrinthine paper-based process. Clearly, the information she has received contradicts, at least in part, the information that I have had about how well the scheme works. I will of course ensure that Home Office officials look at any evidence she has which may cast into doubt the efficient working of the scheme.
Baroness Hamwee
My Lords, I think the first piece of evidence will be the case to which the noble Baroness and I have referred. I am grateful for that undertaking and beg leave to withdraw the amendment.
Baroness Neuberger (CB)
My Lords, I, too, strongly support this amendment. I will speak briefly because much of what I wanted to say has already been said, and said very eloquently.
This is enormously important. As many noble Lords know, we run a drop-in for asylum-seeker families at my synagogue. In talking to some of the women, many of them pregnant, who visit with their small children, one thing that comes out time and time again is how they worry that the situation in which they are living—they are not detained—is so insecure that some of that insecurity may be transmitted to their unborn children. Of course, we know a great deal now about the transmission of anxiety and trauma to unborn children. If we extrapolate from that and from those women talking about it to women detained for what seem to be not very good reasons, it is really important that we have an absolute exclusion on pregnant women being detained. I hope that people will look at the evidence given by the Royal College of Midwives. That made it absolutely clear that unborn children may well be traumatised by the experience. I do not believe that we in this House would wish to take responsibility for that.
Baroness Hamwee
My Lords, from these Benches I support this amendment very warmly. In the previous stage of the Bill, as the noble Baroness, Lady Lister, said, we had an amendment dealing with vulnerable people but it was debated alongside and really overshadowed by the amendment on a time limit to detention. The amendment provided that detention should take place only in exceptional circumstances determined by the First-tier Tribunal.
After the amendment was tabled, I was quite embarrassed by the opposition to or considerable doubts about it expressed by a number of organisations for which I have the greatest respect. They told me that we had got it wrong and that we should not provide for any exceptional circumstances in the case of pregnant women. I explained to them that the amendment was expressed as it was because we were trying to approach the Government with an offer of compromise. We hoped that the Government would meet us halfway by agreeing to not a complete exception but the one we expressed in that amendment. The list of vulnerable people was taken from Stephen Shaw’s report, in which—no ifs, no buts—pregnancy means vulnerability. As the noble Baroness said, and I will see if I can get it out without tripping over the word, he spoke of the,
“incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.
His Recommendation 10 was that they should be excluded.
The Government have added what is now Clause 62 to the Bill and there will be guidance; I acknowledge that that will come to Parliament. However, it will be through the negative procedure, and this is another of those examples where we can talk to our hearts’ content but will not be able to alter what is proposed. I was worried when I saw that new clause in the last stage and I worry now about the expression “particularly vulnerable”. I say again: there should be no ifs, no buts.
The Government proposed the adults-at-risk approach that has been referred to. I thank the Minister for his letter, in which he describes the Government’s concern about allowing all pregnant women access to the UK regardless of their immigration status, and therefore access to maternity services. The noble Earl will recall the debates that led up to the health charge being imposed—I suppose it is two years ago now—and that was one of the concerns which was expressed. We now have the health charge.
The letter from the Minister, the noble and learned Lord, Lord Keen, explained:
“The higher the level of risk (and pregnant women will be regarded as being at the highest level of risk), the less likely it is that an individual will be detained”.
He added that the Government’s view,
“is that the best approach is a considered, case by case one which is represented by the adults at risk policy”.
I find it difficult to reconcile the two parts of that—that this is the “highest level of risk” but that there will be a “considered, case by case” approach. I do not think that the Minister can be surprised at the anxiety expressed by the very considerable number of well-respected organisations which are anxious about the policy given their experience of the current policy.
The noble Baroness referred to the all-party group inquiry, of which she and I were members. I turned it up this morning to find the comments that we made then about pregnant women. They included the evidence of Hindpal Singh Bhui, a team inspector at HM Prisons Inspectorate, who said that,
“pregnant women are only meant to be detained in the most exceptional circumstances. And again, we look for evidence of this”.
Of course, I am talking about the historical position. The inspector continued:
“And on the last couple of occasions that we’ve looked, we haven’t found those exceptional circumstances in the paperwork to justify their detention in the first place”.
Our report went on to say:
“We were also told of pregnant women being forced to travel long distances, sometimes over several days, when initially being detained, and failures in receiving test results and obstetric records. In one case, we were told that an immigration interview was prioritised over a 20-week … scan”.
The report continued:
“We are disappointed that the Home Office does not appear to be complying with its own policy of only detaining pregnant women in exceptional circumstances. We recommend that pregnant women are never detained for immigration purposes”.
I see no reason to depart from that but every reason to support it and the amendment.
Lord Rosser
I apologise in advance for the fact that my contribution will contain a fair element of repetition of what has already been said but it will be relatively brief.
In his review for the Home Office into the welfare of vulnerable persons in detention, Stephen Shaw recommended that it amend its guidance so that the presumptive exclusion from detention for pregnant women was replaced with an absolute exclusion. Stephen Shaw said in his report that Her Majesty’s Inspectorate of Prisons had told him that in its view there was little to suggest that pregnant women were being detained only in exceptional circumstances. He also said that the Association of Visitors to Immigration Detainees had pointed out that an inspection of Yarl’s Wood had found pregnant women being detained without evidence of the exceptional circumstances required to justify this, with one of the women being hospitalised twice because of pregnancy-related complications. In the light of the evidence presented to him, which he set out in his report, Mr Shaw said that he had not sought further evidence that detention had an adverse effect on the health of pregnant women and their unborn children, since he took this to be a statement of the obvious.
Stephen Shaw also said in his report that he believed that the Home Office should acknowledge the fact that in the vast majority of cases the detention of pregnant women does not result in their removal, and that in practice pregnant women are very rarely removed from this country except voluntarily. Concluding, he said that he was strongly of the view that presumptive exclusion from detention should be replaced with an absolute exclusion.
I hope that the Government will reflect on their apparent decision not to accept Stephen Shaw’s strong recommendation in respect of the detention of pregnant women. It is my party’s policy that pregnant women should not be detained in these circumstances, a view also expressed by Mr Shaw in his independent report to the Home Office. If my noble friend Lady Lister of Burtersett decides, at the end of the debate—and, most importantly, after the Government’s response—to test the opinion of the House, we shall support the amendment.
Lord Keen of Elie
My Lords, Amendments 7, 10 and 11 are all relatively minor and somewhat technical in nature. Clause 63 ensures that a person may be on immigration bail when they are liable to detention, even if they can no longer be detained, and subsections (3) and (4) apply this to people who have been released on bail under the current provisions of Schedule 2 to the Immigration Act 1971. Amendment 7 to Clause 63(5) removes the reference to an amendment being made by subsection (3). This is because, in an earlier draft of the clause, subsection (3) contained an amendment to Schedule 2 to the 1971 Act, but subsections (3) and (4) no longer use that construction.
Amendments 10 and 11 to Schedule 10 ensure that any cross-references in other legislation to immigration bail granted, or a condition imposed, under Schedule 10 will include the rare circumstance when bail is granted by the court, just as if it were granted by the tribunal. I beg to move.
Baroness Hamwee
My Lords, I am grateful for the Minister’s explanation but, on Amendment 7, it seems to me that we have never really had an explanation of why it is necessary for these provisions to be made retrospective. The Constitution Committee raised the matter in its report to the House on the Bill, and referred to the Government’s acknowledgement of retrospectivity in the Explanatory Notes, which said:
“This clause is retrospective in its effect because it is intended to clarify the law following a recent Court of Appeal judgment”.
Having read on in the Constitution Committee’s report, I wonder whether “clarify” is the right term. I do not think one can talk about correcting a Court of Appeal judgment, but that is the flavour of what the Constitution Committee had to say. The Government’s response to the committee was that the clause has been remodelled, which does not seem quite to take the point. Could the noble and learned Lord assist the House by explaining why this does not broaden the scope of the Bill and why it is appropriate?
My first reaction on reading Amendments 10 and 11 was to wonder whether the draftsman could not have made a real effort to make them really opaque and difficult to follow. After that rather flippant comment, the serious point is that, as I understand the issue, the Secretary of State is now to have powers over courts as well as the tribunals. The noble and learned Lord is shaking his head, so I look forward to his refuting that. We are bothered, as we have been concerned before, about not respecting the independence of the judiciary. What if a tribunal judge thinks that it is contrary to a person’s human rights to impose the electronic monitoring condition, and the Secretary of State says that it is not contrary to do so? The judge is very conflicted there. What if he or she wants to impose a condition, and considers that it would be practicable to do so, but the Secretary of State says that it is not practicable, so the judge cannot impose the condition? If that meant that the judge did not grant bail to that person, this would be a considerable—and, I think, unwarrantable—interference with the person’s right to liberty. Would the noble and learned Lord expand a little on his explanations?
Baroness Hamwee
“(10) For the purposes of subsection (9) a person is unaccompanied who is separated from both parents and is not being cared for by an adult who in law or by custom is responsible for doing so.”
Baroness Hamwee
My Lords, Clause 71 provides for the transfer of responsibility for relevant children. A relevant child is defined in subsection (9) as an unaccompanied child, while subsection (10) says:
“The Secretary of State may by regulations make provision about the meaning of ‘unaccompanied’”.
At the previous stage of the Bill, the noble Baroness, Lady Lister, raised the concern that an accompanying adult might not be—I use this phrase non-technically—an appropriate adult. There were concerns about trafficking. The amendment would put into the Bill the definition that is in current Home Office guidance on processing asylum applications by children.
While the amendment is to Clause 71, the same issue might of course arise in respect of Clause 70, the clause that your Lordships agreed on Division regarding the figure of 3,000 unaccompanied children. We will have to see what happens to that provision. In any event, taking a rather narrow technical point about Third Reading, that clause was not the subject of the reassurance from the noble Lord, Lord Bates, that he would put in writing how the term “unaccompanied” would be defined and would operate, and that he would do so by Third Reading. Given the change of Minister last week, I contacted the noble Earl’s office to ask if there would be a letter, and at the point when I tabled the amendment there was not. It arrived around 6 pm yesterday and I read it some time later, and I thank him for it. The letter says that there is,
“no intention to alter the definition”,
for the purposes of this clause. In situations where an asylum-seeking child,
“is accompanied by an adult who is not a parent or relative”,
Home Office officials will,
“verify the identity of the adult and establish the relationship with the child”.
I am not sure whether the relative referred to there is one who by custom has responsibility for the child, otherwise there would be a change from current guidance, although I gather that Home Office guidance is currently being rewritten. What I am really not clear about is why the Bill needs to allow for any flexibility or change in the definition, so it is important to get the position on record.
I was concerned about the reason for leaving the matter open in the way that the Bill does. When I was looking into this at the weekend, I found that the definition used by the Committee on the Rights of the Child is slightly broader because it refers to “other relatives” as well as parents. It occurred to me that it is known that “other relatives” are sometimes traffickers, which is why the wording is not used in the Home Office definition. There may be issues around siblings or other family members. However, it is important that we get the position on the record. It would be preferable to get it into legislation, but at any rate we should understand what the parameters are of the regulations that the Secretary of State might make. I beg to move.
Baroness Lister of Burtersett
Once again, my Lords, I am very grateful to the noble Baroness, Lady Hamwee, for tabling this amendment. With her usual lawyer’s quickness, she picked up the point that I raised on Report. As I said then, it is a point that was raised with me by an organisation local to me in the East Midlands, Baca. It was worried because it could not understand why that wording was there. It is perhaps not surprising if groups are worried and perhaps slightly cynical when they come across measures that they do not understand, given that there is so much in legislation that they do not like. So I am delighted that, at the last minute, the letter from the noble and learned Lord, Lord Keen of Elie—not the noble Earl—made it very clear that the definition, as in the amendment, is,
“separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so”.
It is helpful to have that in Hansard because of course your average punter cannot read the letters sent between Ministers and Members of your Lordships’ House. I am sure that the noble and learned Lord will repeat that for the record. Also, like the noble Baroness, I would appreciate an explanation of why this clause is necessary, given that this is, as the letter says, the,
“established definition in the Immigration Rules”,
and it is accepted by the UN. I am glad that through this organisation raising this matter with me, we have some clarity on what is meant by it.
Lord Keen of Elie
I am obliged to the noble Baronesses, Lady Hamwee and Lady Lister. As they have observed, there is already an established definition of “unaccompanied” in the present context. It is not in guidance alone; it is in the Immigration Rules, and that is important. The definition states that an unaccompanied asylum-seeking child is someone who—perhaps I may, as suggested, read this into the record—is under 18 years of age when the claim is submitted, is claiming asylum in their own right, is separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so.
Following the commitment given by my noble friend Lord Bates on Report to explain how the definition would operate, I wrote to the noble Baronesses—albeit, as they observed, at the last minute—to confirm that there is no intention of altering the definition of “unaccompanied” as set out in the Immigration Rules for the purposes of the transfer provisions in the Immigration Bill. Furthermore, defining particular categories in primary legislation is not always desirable or even necessary. As your Lordships will appreciate, there are times, particularly in the context of the current migration crisis, when the Government need to respond quickly to changing circumstances.
I should make it clear that at present we have no intention of amending the definition of “unaccompanied”. We would do so only in response to a significant change in circumstances, but it is important that in such circumstances we are able to react swiftly and efficiently. Clearly, regulations subject to parliamentary scrutiny are a more appropriate way to achieve that result than placing something on the face of this Bill.
I reassure the noble Baronesses, Lady Hamwee and Lady Lister, that safeguarding and promoting the welfare of vulnerable children is at the forefront of the Home Office’s work with the Local Government Association and the Department for Education to develop a transfer scheme for unaccompanied asylum-seeking children. I understand the concerns about the definition of “unaccompanied”—it may have unintended consequences and inadvertently place children in the hands of traffickers—but immigration officials working with these vulnerable children are trained to be alert to any signs that a child is at risk of harm or abuse or may have been trafficked. Where an asylum-seeking child is accompanied by an adult who is not a parent or a relative, Home Office officials work with local authority children’s services to verify the identity of the adult and establish the true relationship with the child. If that relationship cannot be verified or there are ongoing welfare or safeguarding concerns, the child will be treated as unaccompanied.
In the light of those points and our recent correspondence confirming that we have no intention of amending the already established definition of “unaccompanied” for the purposes of the transfer provisions, I invite the noble Baroness to withdraw the amendment.
Baroness Hamwee
My Lords, that is reassuring. It is difficult to imagine how urgent the circumstances might be that would require a swift change of the definition. However, I am very glad to have the assurances about the position on the record in Hansard, which, as the noble Baroness said, is most easily accessible by those outside this place. I beg leave to withdraw the amendment.
Lord Rosser
I take this opportunity—I believe I am doing it at the right place—to express our thanks to all those who have participated in the debates on the Bill, which I believe is now a better Bill than the one that was sent to us from the House of Commons. We are grateful for the amount of information provided by Ministers and the Bill team, for the numerous meetings that have taken place and for the willingness of Ministers to listen to concerns about the Bill and, in some instances, the willingness of the Government themselves to bring forward amendments or place statements on the record to address those concerns. I particularly express appreciation of the work undertaken during the passage of the Bill by the noble Lord, Lord Bates, whose approach, as with that of his Front-Bench colleagues, has I think been appreciated on all sides of the House.
Baroness Hamwee
My Lords, from these Benches I add our thanks, particularly to the noble Lord, Lord Bates, who has started on a rather long walk, as my noble friend Lord Wallace of Saltaire said. It is one of a series of admirable walks but the noble Lord’s colleagues have been walking well alongside him, and after him, during the course of the Bill. It feels a little odd to agree that the Bill do now pass, because we are by no means clear what it will provide by the time that it has endured—a word that the noble Lord the Chief Whip might use—ping-pong. We are by no means finished with these issues or with the Bill itself.
Lord Alton of Liverpool
My Lords, from the Cross Benches, perhaps I can briefly add a remark to those of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, particularly in paying tribute to the noble Lord, Lord Bates, whose leave of absence was agreed by the House only yesterday. I was privileged to get to know the noble Lord, Lord Bates, when we served in another place and we remained friends after he left the House of Commons. I was delighted when he was appointed as a Member of your Lordships’ House; I was even more delighted when the Government had the good sense to appoint him as a Minister of the Crown. He has discharged his responsibilities in the House over the passage of time, particularly on the Modern Slavery Act and now on the Immigration Bill, with great distinction. We have huge admiration for the work that he is undertaking, which is to raise the peace pledge and the work of the Red Cross and Save the Children. It touches on many of the issues which we have debated in your Lordships’ House during the passage of the Bill so, before the Bill passes, I am sure that we all add our voices to those which have already been raised in thanking the noble Lord, Lord Bates, for all that he did.