Public Order Bill

Debate between Baroness Hamwee and Lord Paddick

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Baroness Hamwee (LD)]

If the Minister is going to come back to my noble friend, could he do so in this Chamber? That question is absolutely fundamental to the discussion on the Bill. To have the answer in writing, available in the Library if one goes to look for it, is in our view not adequate.

[Lord Paddick (LD)]

This is Committee, so we are allowed this sort of debate. I want to reinforce what the noble Lord, Lord Carlile, said about Section 78 of the Police, Crime, Sentencing and Courts Act. It says:

“A person commits an offence if … the person … does an act, or … omits to do an act that they are required to do by any enactment or rule of law … the person’s act or omission … obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and … the person intends that their act or omission will have a consequence mentioned in paragraph (b)”.


That covers, completely and perfectly, the people on the gantry of the QEII Bridge. The maximum sentence for that activity is up to 10 years in prison. None of the provisions in this Bill goes anywhere near 10 years in prison. Why do the Government not rely on existing legislation rather than creating all these other offences?

Public Order Bill

Debate between Baroness Hamwee and Lord Paddick

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I have the greatest respect for the noble Lord, Lord Carlile of Berriew, and completely agree with him that the Government have not made the case for any of the provisions in the Bill.

I agree with many of the points that other noble Lords have already made in this debate on all sides of the House. The Government should take note of the strength of feeling, particularly among the influential Members of the Cross Benches, who are opposing the provisions in the Bill and are likely to persuade their colleagues to vote with them against it on Report if we do not have sufficient clarity and answers to the proper questions that many Members of the House have put to the Ministers but to which they have not received answers today.

I will not repeat what I have already said, particularly in relation to the first group. I am grateful to Liberty for its briefing on the Bill. Based on that briefing, I say that case law confirms that we have a right to choose how we protest, and the diversity of protest tactics throughout history demonstrates the deeply interconnected nature of free expression, creativity and dissent. The offence of locking on under Clause 1 not only defies those principles but criminalises an innumerable list of activities—not only what we would typically understand as lock-on protest, where people lock themselves to one another via a lock-on device or chain themselves to Parliament, but any activities involving people attaching themselves to other people or to an object or land, or attaching objects to other objects and land.

The Government claim that the wording of this offence is sufficiently precise to be foreseeable and that the provisions are in accordance with the law. As noble Lords will have noted from discussions on previous groups, I disagree. I am concerned that the offence under Clause 1 risks disproportionately interfering with individuals’ rights under Articles 10 and 11 of the European Convention on Human Rights.

As the noble Baroness, Lady Jones of Moulsecoomb, said on a previous group, the broad and vague nature of “attach”, which is not defined in the Bill, means that this offence could catch people engaged in activities such as linking arms with one another, or locking their wheelchairs to traffic lights. The recurring themes throughout our debates today have been the risk of disproportionality and the risk of uncertainty.

As I have stated before, this proposal is not supported by the police. When consulted on a similar proposal by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, police respondents said:

“most interviewees [junior police officers] did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”

Even the police are against it.

Turning to the new offence of being equipped for locking on, I reiterate my concerns that the vague and potentially unlimited list of activities covered by this offence are exacerbated by the ambiguity of the drafting of Clause 2. I note that the object in the offence of locking on does not have to be related to protest at all. It must simply be established that a person intended it to be used in a certain way. Nor does the object have to be used by the person who had it in their possession. The offence refers to

“the commission by any person of an offence”.

The phrase

“in the course of or in connection with”

casts an extremely wide net as to what activities might be criminalised under the offence. So wide is the net cast by this clause that effectively any person walking around with a bike lock, a packet of glue, a roll of tape or any number of other everyday objects could be at risk of being found to have committed this offence. As we have heard, the possibilities are endless. It is also significant that, unlike the substantive offence of locking on, there is no reasonable excuse defence in the wording of this offence, which means that individuals will find it even more difficult to challenge.

The Just Stop Oil movement has called off its protests because too many of its members are behind bars under existing legislation—particularly the favourite of the noble Lord, Lord Carlile of Berriew, Section 79 of the Police, Crime, Sentencing and Courts Act 2022. If current legislation has effectively put a stop to the disruptive Just Stop Oil protests, why on earth do we need this Bill?

[Baroness Hamwee (LD)]

My Lords, as we now have both Ministers on the Front Bench, I will repeat the point I made earlier about explanations being made in the Chamber. I will add a sentence to what I said before about explanations being given in writing, by letters to individual Members of the House, generally copied to other interested Members: they kind of float though and one loses a grip on how much has been answered. Explanations that are part of the justification for a piece of legislation are not easily available to those who need to know them. We have a parliamentary website with a webpage for each piece of legislation. That is where people will go to see what the debate has been on particular amendments and how amendments have changed as a Bill has progressed. That is where they should be able to see the answers that Ministers were not able to give at the time when a matter was raised. Either through Hansard or some other mechanism, these answers should be lodged on the public record, and they have to be given in the Chamber in order to progress. This is immensely important, and I am making the point here because it is on the point of principle that other noble Lords have spoken about on this group.

Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022

Debate between Baroness Hamwee and Lord Paddick

Tuesday 7th June 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have two sentences. My noble friends referred to examples of problems encountered by the people affected. I am sure other noble Lords will have thought, as I did, that if there are problems at the border and if airlines cannot cope—and it is their bread and butter to deal with status—is it any surprise that employers, landlords and so on have difficulties too?

[Lord Paddick (LD)]

My Lords, the noble Earl, Lord Clancarty, comprehensively set out the concerns with this statutory instrument, powerfully reinforced by my noble friends Lord Oates and Lady Ludford in particular. On a positive note, the instrument adds categories of people who can rent housing, but I am afraid that is about it.

There are two revised codes of practice: one on civil penalties and how to avoid them if you allow someone to work who is not entitled to work, for example, and another on how to avoid unlawful discrimination—for example, between British citizens and someone who is not a British citizen but is allowed to work in the UK.

The codes of practice on non-discrimination say that employers should do a right-to-work check on every applicant, British citizen or not, so as to treat everyone the same, but the checks are not the same. British and Irish citizens can produce a passport, current or expired. Would the Minister comment on whether an expired passport issued when the holder was six months old would be acceptable as a physical document for an employer? EU citizens who have applied for settled status can produce a document issued by the Home Office showing that they have applied, in which case they are entitled to work, but the employer must also have a positive verification notice from the Home Office employer checking service.

As other noble Lords have said, for foreign nationals who hold a biometric residence card, biometric residence permit or a frontier worker permit, even these documents can no longer be used as evidence on their own of their right to work without using the Home Office online system in addition. As other noble Lords have said, that will now include Ukrainian refugees. EU citizens who have settled status are even further discriminated against as they have no physical proof that they have a right to work, and the employer has to rely entirely on what is a not entirely reliable Home Office online system.

Despite the codes of practice to help employers avoid discrimination, the codes of practice on how to avoid civil or criminal penalties for employing someone not entitled to work are themselves discriminatory, in that British and Irish workers can be employed on the basis of a physical document, current or expired, but everyone else, even if they have physical proof, has to get it checked by the Home Office online system. How many employers, particularly those employing casual labour or temporary staff, will take the quick and easy route and employ a British or Irish citizen, based potentially on an expired passport, rather than a foreign worker?

As my noble friend Lord Oates said, the Windrush Lessons Learned Review emphasised the need for the Home Office to listen to the users of the system. Those who have to rely on digital-only proof of their rights have consistently said that they want physical proof. The Government have not learned the lessons of Windrush. We support this regret Motion and will support the noble Earl if he decides to divide the House.

Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Paddick

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

[Baroness Hamwee (LD)]

My Lords, I do not want to take the time of the House other than to say, with thanks for the letter, that I hope the Minister will accept that discretionary registration is qualitatively different from automatic citizenship, which is what we have been seeking, and understand my concern that the letter uses terms such as addressing

“exceptional cases in a flexible and proportionate way”.

This is vaguer than one would wish to see and a situation which I am sure is nobody’s fault but one of those unintended consequences of legislation not aligning.

[Lord Paddick (LD)]

My Lords, I am glad that the noble Lord, Lord Russell of Liverpool, has reached agreement with the Government. I wish I could say the same.

I will speak to Amendment 21 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. The Government allege that parents were deliberately not registering the birth of their children and acquiring citizenship of the parents’ home country to wrongly claim British citizenship, by falsely claiming their children were stateless. We believe this clause should be taken out of the Bill.

In Committee the Minister, the noble Baroness, Lady Williams, provided, at column 548, figures of five cases of this route being used in 2010, which peaked at 1,775 cases in 2018. The Minister concluded “I rest my case”, but this raised further questions: for example, were those 1,775 cases in 2018 the number of stateless children born in the UK who were granted British citizenship in total, legitimately or otherwise, or the number where parents had deliberately chosen not to register their child’s birth to take advantage of the system? The Minister assumed it was the latter but said that she would write, and she did so on Friday.

In Committee, I specifically asked the noble Baroness whether the 1,700 odd cases in 2017 that she referred to were the total number of stateless children granted UK citizenship, or the number of cases of deliberate abuse of the system that Clause 10 purports to tackle. The Minister replied:

“I assume … the latter, but I will write to the noble Lord with the details of the figures I have here”.—[Official Report, 27/1/22; col. 550.]


However, when the Minister wrote, the figures in the letter do not equate to those she gave from the Dispatch Box. Neither is there an answer to the question: of those cases, how many were a deliberate—or even a suspected—case of abuse of the system?

The letter goes on to talk about the sampling of over 200 stateless child applications received between 2015-2021, which on my calculations is about 1% of the applications received. It goes on to say that, in 96% of the sample, the parents were Indian or Sri Lankan and then:

“90% of Indian and Sri Lankan parents had been able to take steps to contact the High Commission to obtain a letter to show their child was in fact not a citizen of that country”


and, in brackets:

“(We do not have data on how many actually attempted to register the birth)”.





In summary, we have numbers in the letter that appear to be at odds with what the Minister said at the Dispatch Box, we have a sample of only 1% of all applications and we do not know how that sample was selected. In the sample, in 90% of cases the relevant high commission confirmed the child was stateless and the Government have no data to show whether parents attempted to register the birth at the time. Despite this, the letter concludes:

“This demonstrates a clear and conscious decision by the parents not to acquire a nationality for their child for at least 5 years”.


That conclusion cannot possibly, in good faith, be drawn from the facts, whichever sets of facts presented by the Government that the House chooses to believe—either the facts the Minister gave from the Dispatch Box or the alternative facts contained in the all-Peers letter.

If the Government cannot now determine how many cases are genuine and how many are the result of attempting to inappropriately acquire British citizenship, on what basis will the Secretary of State exercise her powers under Clause 10 to decide whether the child in question is able to acquire another nationality? Specifically, if, as in 90% of cases in the sample, the relevant high commission confirms the child is stateless, on what basis will the Home Secretary decide not to believe the high commission, decide that the child could acquire the relevant nationality and deny the child British citizenship? What happens to the child denied nationality by the relevant high commission and by the Secretary of State?

If, as the Government suggest, this route is being used inappropriately by parents to acquire British citizenship for themselves, the Government should bring forward legislation to prevent parents acquiring British citizenship through their children by this route, rather than making innocent children, born in the UK, stateless. I was hoping the Minister would write in good time, with a clear and unambiguous answer to the questions I put to her in Committee on 27 January. She did not and she has not.

I am reluctantly left with two options: either the Minister addresses the apparent discrepancies and presents the House with a clear case for Clause 10 now or he agrees to take this away and address our concerns at Third Reading—otherwise I will be forced to conclude that the case is not made for Clause 10 and will divide the House. We cannot leave UK-born children stateless at the whim of the Home Secretary. Clause 10 should be taken out of the Bill.

Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Paddick

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have been encouraged to say a word—it was only going to be a word, but it will be a few more now—in support of my noble friend Lady Ludford. I am pleased that she has taken on this cause. I am not seeking to analyse every one of these amendments, but they are about protection in every sense of the word, which is what the right reverend Prelate the Bishop of Durham was saying. I applaud the Government for enabling the reuniting of some families, but I am thinking about those who have not been reunited, where there are problems.

I had a similar experience to the noble Lord, Lord Dubs, in a meeting with Brandon Lewis and a battalion of officials, when I remember being told that the rules are quite adequate—but they are discretionary.

We have been asked by the noble Lord, Lord Green, to think about the real world. The real world is not just in the UK. One of the aspects of children being alone in the UK is the cost to local authorities, which can be very substantial when children are here by themselves. One needs to include a number of factors when balancing the question of costs.

I would like to echo whoever it was who pointed to the importance of siblings being able be together. A child or young person—frankly, anybody coping with the experience of being a refugee—needs the support of family. A sibling can be such a support to a child; I have heard siblings speak of this. These amendments have my support.

[Lord Paddick (LD)]

My Lords, I pay tribute to the noble Lord, Lord Dubs, for his tireless work on family reunion, born out of his own personal experience. I also pay tribute to my noble friends: my noble friend Lady Hamwee, who ran the first leg with her Private Member’s Bill, before handing over to my noble friend Lady Ludford.

It is better for families to be together, not just for their own welfare but so that they can look after each other, as my noble friend Lady Hamwee had just said, rather than being looked after by the state. We strongly support Amendment 112. Amendment 113 would provide a mechanism for those unaccompanied refugee children who had reached an EEA country and who have a family member in the UK to be reunited with that family member. Amendment 114

“would require the Government to produce a negotiating mandate to seek reciprocal arrangements, with other states, on safe returns and safe legal routes.”

I am guessing that would be something akin to Dublin III. Amendment 117 from the noble Lord, Lord Dubs, would change the Immigration Rules to allow people currently in Europe to come to the UK to seek asylum—effectively be given a visa—if they have a family member in the UK. This is a subset of my noble friend Lady Hamwee’s Amendment 118 in the next group. We support all these amendments.

Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Paddick

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my name is to a number of amendments in this group—including Amendments 69A, 71A, 71B, 73A and 73B—and they all come from the UNHCR. I had written down not “guardian” but “steward”, but it comes to the same thing—that is, stewardship of the convention. I am not suggesting for a moment that I would be happy—or that it would be happy—to see these clauses remain in the Bill, and I hope I am not too much in “lipstick on pigs” territory, but given that the UNHCR of all bodies has proposed these, I think it right that I speak to them, and I will do so reasonably quickly.

The UNHCR has reiterated that the Bill is fundamentally at odds with the Government’s avowed commitment to uphold the UK’s international obligations under the convention, and its long-standing role as a global champion of supporting and protecting refugees. It has reminded us that three safeguards are essential to any inadmissibility rules. First, they must not operate in a way that denies the fundamental right to seek and enjoy asylum, which is another way of saying a good deal of what has already been said. Secondly, they must protect rights under international law during the refugee process and once a refugee has been recognised. Thirdly, the aim should be to increase access to asylum globally. Clause 15 does not meet those tests; in the interests of time, I will not go through why.

The amendments in my name are to prevent the UK breaching international standards. They would mean that a safe third state must be safe in law—I should put that first—but safe in practice, and that a claim must be considered under the Immigration Rules, not as an optional matter; they broaden the circumstances in which the Secretary of State must consider the application and reduce the risk of an asylum seeker being sent to a country which is not a signatory to the convention and does not respect the rights of refugees under international law. The “connection” would be what most people would regard as a connection in ordinary language, and they define a “relevant claim” as a claim for protective status consistent with the convention. On Tuesday there was a lot of discussion about the importance of the convention as a matter of morality and, very importantly, as law. These amendments relate to both.

On the issue of formal returns agreements, to which the noble Lord, Lord Rosser, referred, Amendment 195 would require a returns agreement before regulations were brought into force. I agree with that but with the condition that the agreements were acceptable. The amendment perhaps begs the question: I would like to think that it would be possible—it would be proper—for Parliament to have a role, which it will in an international agreement, and that amendments that are thought by Parliament to be required are made, so that the agreement is not just imposed.

[Lord Paddick (LD)]

My Lords, there are lots of issues here, but I start by making an overarching comment. A decade or more ago, the Home Office was dealing with many more applications for asylum than now. I am talking about initial decisions, not appeals. It was dealing with them more quickly and more effectively; the backlog was lower; and the successful appeal rate was lower. I try to be a “glass half full” person and usually fail miserably—but enough of my problems. Let me put it this way: the Home Office has proved in the past that it can deal efficiently and effectively with many more asylum applications than it is facing today. The fix for the current problems lies in the staffing systems and processes of our Home Office, not in the legislation or the number of asylum applications.

I have said it before, and I will say it again: the Government are focusing on the wrong things in the Bill and doing nothing to address the things that need to be addressed. This group of amendments is about unfairly and unreasonably reducing the number of asylum applications rather than increasing the capacity of the Home Office to handle them effectively, as it has proved it is capable of doing in the past.

Clause 14 proposes that all claims for asylum from EU nationals must be ruled inadmissible and that, as it is not a decision to refuse a claim but a decision to refuse to consider a claim, there be no right of appeal. A claim can be considered in exceptional circumstances, but the examples given are where the EU state is at war and has suspended the European Convention on Human Rights, or is going off the rails to such an extent that the EU itself is taking action against it for not complying with the standards of human rights expected of a member state.

These exceptional circumstances do not go far enough, as the noble and learned Lord, Lord Etherton, said. We have seen EU states fail to act or take sufficient action to protect minorities. He mentioned Hungary. In 2020, six Polish cities announced LGBT-free zones. It may not necessarily be the case that an EU state, or even a municipality within an EU state, is overtly persecuting minorities, but failing to protect some minorities may make it unsafe for them to be in a particular state and as such may amount to grounds for asylum in the UK. Surely Home Office officials can determine whether any application for asylum has merit, whoever it is made by and whatever part of the world the applicant is from, without blanket bans of this kind in primary legislation. Amendment 68 from the noble and learned Lord, Lord Etherton, would be useful if the clause survives, but Clause 14 should not stand part of the Bill.

Another category of claim the Government want to rule as inadmissible is where the claimant has a connection, however spurious, with a safe third state. It just smacks of: “Let’s invent lots of excuses for rejecting someone’s asylum claim, however far-fetched they may be.”

In relation to the other amendments, if the clause remains part of the Bill, of course a safe third state must be safe—and that means safe for everyone, including minorities. It means that their rights will be protected and that the asylum system is compliant with the refugee convention. Of course the Home Secretary should not be able to remove a genuine refugee to any safe third state—to dump them anywhere in the world, whether they have any connection with that state or not.

On what planet does the following make sense? You establish some kind of connection between an asylum seeker and a safe third state, but you cannot send them there because you do not have a return agreement with that state. However, you still refuse to consider their application for asylum. So what are they supposed to do now?

Another amendment seeks to prevent the following scenario: even if the refugee has family in the UK, they could still be deported to a safe third state—“Sorry, lad, I know your parents are here but you’ve got a connection with Turkey because your grandparents are old and frail and could only make it that far, so off you go”.

The conditions for establishing a connection with a safe third state—we have seen this sort of thing before—look like an awayday board blast, where there are no wrong answers and anything you can think of is uncritically written on a flipchart. Can “Well, we think you should have made a claim elsewhere” seriously be a reason an official can give to rule a claim inadmissible, with no right of appeal?

Clauses 14 and 15 should not be part of the Bill, and we will support the other amendments only if those clauses remain.

I was going to speak to Amendment 76, which seeks to override

“all prior national and international law”,

but there is no one here to speak to it, so I shall decline.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I have put my name to the proposal that Clauses 22 and 23 should not stand part of the Bill. When I first saw the term “expedited appeals”, my antennae twitched. It sounds such a benign and helpful term but then so did “detained fast track”—the accelerated process for considering asylum claims introduced in 2002, involving detention immediately after the asylum screening interview, which was followed shortly by the substantive interview, with a decision the following day and two days to appeal. The High Court found that the DFT, as operated, carried

“an unacceptably high risk of unfairness”

to vulnerable or potentially vulnerable applicants, and to that extent it found it to be unlawful, and the Home Office eventually suspended it. Expedited appeals are not the same but some of the issues are really quite similar.

As we have been discussing, the Bill of course provides for priority removal notices to be served on anyone liable for removal or deportation; we have discussed the cut-off date for the provision of evidence. However, it does not set out the factors that may lead to a PRN being issued. That is left solely to Home Office guidance. I support what the noble Lord, Lord Coaker, just said about needing to see guidance—but only so far because guidance, by definition, can be changed and although we may be reassured in February 2022, come February 2025 things might look quite different, with the same Government or another Government producing rather different guidance.

Listening to the previous debate, I was concerned that for an appropriate date to be set, the Home Office needs to know whether somebody is vulnerable, but it will know that only after the event of the notice. I understand the difficulty of trying to start without a starting point, which is the point that the Minister was making. Without a date, you cannot look further, but the extension of that is important. I found it quite difficult to follow all that. I am mentioning it now because it is part and parcel of the same issue and certainly Hansard will require careful reading.

The PRN will remain in force until 12 months after the cut-off date or exhaustion of appeal rights. We have talked about whether or not there is a principle. Clause 22 provides for an expedited appeal route for appellants who have been served a PRN and have made a claim on or after the cut-off date but while the PRN is still in force. In that circumstance, the Secretary of State may “certify”—an interesting term in itself—that any right of appeal against a Home Office refusal will be to the Upper Tribunal instead of the First-tier Tribunal. The Secretary of State can also certify that she or he is satisfied that there are good reasons for making the claim on or after the date. I cannot think of an alternative to what is probably an inappropriate term about being judge and jury in your own case, but I think noble Lords will understand what I mean.

The result of an appeal being certified is that one tier of appeal—the First-tier Tribunal—is lost. Under the Bill, the rules must provide for expedited appeals in the Upper Tribunal to be determined more quickly than an ordinary appeal in the First-tier Tribunal and allow for the Upper Tribunal to make an order that the expedited appeals process may—I stress “may”—not apply

“if it is satisfied that is the only way to secure that justice is done in the case of a particular expedited appeal”.

When someone is subject to the expedited process, Clause 23 provides that any other appeals they may have, for instance

“in respect of protection and human rights claims … deprivation of citizenship … EU citizens’ rights”

and so on, are dealt with as a related expedited appeal.

Ousting the jurisdiction of the Court of Appeal, and so prohibiting an appeal from a first-instance decision, is clearly a significant matter. It would give no one the right of appeal to the Court of Appeal and, necessarily, not to the Supreme Court afterwards either. As we have discussed, the appeals concerned involve international protection rights, human rights, European Union and EEA citizens’ rights and the deprivation of citizenship, all areas where the UK has bound itself to abide by international agreements. For such a fundamental right as the right not to be sent back to a country where one is at risk of persecution to be excluded from an onward appeal to the Court of Appeal—even if the decision of the Upper Tribunal contains an error of law or a breach of natural justice—is extraordinary. This is not a criticism of the Upper Tribunal in any way; it is just not how things should be done. Removing Clauses 22 and 23 would leave the existing appeals structure in place.

How will one challenge Upper Tribunal decisions if these clauses stand? My noble friend made a caveat about the use of “constitutionality” but I think that it applies here, as well as on the impact on the rule of law. The Constitution Committee of your Lordships’ House said in its report:

“The House may wish to consider the effect of clause 23 on the functioning of the appeals process and consequently on access to justice.”


That is quite strong stuff for a Lords committee.

[Lord Paddick (LD)]

My Lords, I apologise but, in the war of attrition that this Bill has become, we seem to have lost any contributions other than from the Liberal Democrats and the Labour Front Bench.

Bearing that in mind, I will add to what my noble friend said rather than repeat anything she said. This clause smacks of the Home Office trying to remove or deport people before they have had a reasonable chance to appeal against a removal or deportation decision. No doubt it is embarrassing when repeated stories emerge of government charter flights taking off almost empty because the courts ruled that the majority of those with a seat on the plane should not be deported, but the answer is not to deport them before they have a reasonable chance to put their case before the courts. The answer is to improve the efficiency and effectiveness of the Home Office to ensure that there is a cast-iron case for deportation that cannot be overturned in the courts at the last minute. Yet again, the Bill focuses on the wrong solution to the problem.

I am sure the Minister will agree that as the Home Office becomes better at making its decisions and more and more appeals are turned down, as opposed to the current situation where the majority are accepted by the tribunals, there will be fewer appeals as lawyers say to their clients “Look at what’s happening now. There’s absolutely no point in appealing.” That is the answer to this problem, not Clauses 22 and 23.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I have Amendment 94A in this group. I am sorry that I could not respond to the Minister on the previous group, but I am sure we will come back to that. I was going to observe that the Chamber seemed largely to have cleared, possibly because other noble Lords could not bear this Bill any longer today, but some noble Lords have rejoined us.

It is clearly better that legal aid is available than not, but I am aware, as my noble friend is, of the shortage of provision and some of the problems here. I would say that it is not a matter for today, but actually it probably is. It is very significant, because the words in the Bill will not provide the advice. The Minister has referred two or three times very confidently to the legal aid offer; we are concerned to ensure that that offer has substance.

I have heard over the years of the difficulties of solicitors—if you can find one—advising and taking instructions in immigration removal centres, with the restrictions there on time, of 30 minutes eaten into by the client having to be fetched and then returned. I do not need to say again, but I will in one sentence, that the client often needs a lot of time over a period to tell his or her story.

My amendment seeks to understand how the Government have landed on seven hours. The Minister gently chided me for the use of the term “arbitrary” before. I will acknowledge that my proposal of 20 hours is arbitrary, but it is my way of probing why the Bill provides for seven hours. I asked ILPA whether that would be sufficient, and the reply was:

“I do not think seven hours of legal aid is sufficient to advise on the notice, the person’s immigration status, the lawfulness of removal, and immigration detention. The immigration system is complex, and the Bill makes it more complex through the expedited processes, priority notices, and new definitions/standards … It is also of concern”


that the Bill

“would allow a power to alter that 7 hour time limit.”

There must have been evidence for coming to the seven hours. If that is so, what evidence would the Minister apply to reduce that figure—or indeed extend it? ILPA says it does not

“have a sense as to the specific number of hours needed for this advice, as it would be so case-specific,”

which is entirely understandable,

“including the immigration and procedural history of the case, novelty of any legal arguments, number of bases on which to raise a claim, the legality of detention”

and so on. So I hope that the Minister can flesh out this provision in the Bill so we can understand what the Government think can be achieved with the seven hours of scarce legal aid.

[Lord Paddick (LD)]

My Lords, we support the amendments in the name of the noble Lord, Lord Dubs, for the reasons my noble friend Lady Ludford has explained. As my noble friend Lady Hamwee has explained, Amendment 94A is not to replace one arbitrary number with another but to probe how much legal aid should be provided in such cases. The Minister described, in a previous group, how cases are of different complexity and how people will be given more time to secure and collate evidence if they are from a vulnerable background. For example, if they come from an LGBTQIA background, they are less likely to be able to acquire evidence quickly, and therefore, the date on the notice they are given would change even during the process. Surely that points to the fact that each and every case is different and will require a different amount of legal aid, depending on how much aid is needed to advise in each particular circumstance. I understand that people who are in this situation do need legal aid, but surely the number of hours should be as case-specific and flexible as the deadline date of any notice for them to submit their evidence.

Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Paddick

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I am also not a lawyer, but we have Amendment 29 in this group and we join the noble Lord, Lord Anderson of Ipswich, in opposing the Question that Clause 9 stand part of the Bill. I accept that Clause 9 is about giving notice, but the amendments in the group go beyond that. The main concerns that this group addresses are the significant increase in the use of the power to deprive British citizens of their citizenship and the new provision of dispensing with the requirement that the Secretary of State requires notice to be given to a person deprived of citizenship.

There have been many detailed and compelling speeches and I do not intend to repeat them, but I will refer to the powerful and personal speech of the noble Baroness, Lady Warsi, about how this provision is affecting some British citizens. This is not going to affect some British citizens, like me, at all, but when you hear her personal recollections of the fear that this clause is generating and about the importance of the family attaché case—reinforced by the noble Baroness, Lady Mobarik—you understand that, although it may not be targeting particular communities within the cohort of British citizens, it is certainly causing distress among certain parts of that cohort.

To answer the question of the noble Lord, Lord Hunt of Wirral, on what we do with those people who wish to do us harm, I say that we prosecute them in the courts. We do not dump them on other countries.

Depriving someone of their citizenship is a very serious step to take and it is being taken with increasing regularity. To then do away with the requirement even to notify the subject is totally unacceptable. How can anyone take any steps to correct or challenge a decision that they know nothing about? The noble Lord, Lord Hunt, talked about how we notify the unnotifiable. Even in the case that he and other noble Lords referred to, which has been in the courts, the individuals were not uncontactable; they were not unnotifiable within the law. As the noble Lord, Lord Anderson of Ipswich, explained, notice could have been served on that individual, but the Home Office chose not to. In the figures he gave about how many times that has stopped the Home Office from serving notice on somebody of deprivation of nationality, the answer was zero. Clause 9 is not only unreasonable but, based on the facts, unnecessary as well.

With the increased use by the Secretary of State of the power to deprive a British citizen of their citizenship, we support Amendment 28 in the name of the noble Lord, Lord Anderson of Ipswich, which says that reviews of the use of the power should be annual and not every three years. We also agree with Amendment 27 in the name of the noble Lord, Lord Moylan, to restrict the circumstances in which someone can be deprived of their British citizenship. My noble friend Lady Hamwee will address our Amendment 29, which removes the power of the Secretary of State to directly deprive a British citizen of their citizenship, requiring an application to be made to a court.

We agree with the principle behind Amendments 32 and 33 in the name of the noble Baroness, Lady Bennett of Manor Castle, that the powers the Secretary of State has to deprive British citizens of their citizenship need to be curtailed and the process made more transparent, but we believe that our Amendment 29 achieves those objectives.

[Baroness Hamwee (LD)]

My Lords, I sense very well that the Committee would like to move on, so I will be much quicker than I had intended to be, but my noble friend Lord Paddick has asked me to speak to Amendment 29. Before I do so, I cannot resist rising to the challenge about my party’s involvement in the 2014 legislation. Perhaps after this debate I will explain to the noble Lord, Lord Moylan, the concessions gained in negotiation at that time in response to the agreement.

Amendment 29 would change the requirement from an assessment of conduciveness, if that is a word, to the public good to necessity in the interests of national security. I thank the Minister for her letter following Second Reading. I could not help thinking that the two examples she gave of where Clause 9 could apply probably were matters of national security. She says so for one example, and the other is where it is assessed to be

“in the interests of the relationship between the UK and another country”.

That must be very close to national security, unless the issue is a very long way away from the other country’s security, which would not be a good basis on which to move forward. The amendment would change the requirement of an order to allow for judicial involvement. These two examples actually show why the matter should go to a judge.

I am editing my speech as I go. Reference has been made to particular communities being especially affected by this provision. I say to the passengers on what, in my neck of the woods, is the 337 bus to Clapham that something does not need to be designed to have a particular effect. If it has that effect, it falls into the area we are concerned about.

Our amendment would also add to the exclusions a person holding British citizenship by birth, and where it would

“affect the best interests of a child in the family”.

That is looking at a fairly wide family. Use of the power would require an annual review, which I think is in the amendment from the noble Lord, Lord Anderson.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Hamwee and Lord Paddick

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

[Baroness Hamwee]

My Lords, changing the subject, the Data Protection Act 2018, reflecting the GDPR, in Section 14 provides that “decisions based solely”— solely—“on automated processing” are “subject to safeguards.” Such a decision

“produces legal effects concerning the data subject, or … similarly significantly affects the data subject.”

The decisions are subject to safeguards under the Act, notification of the data subject and the right of the data subject to request reconsideration or, importantly, a new decision not based on automated processing. Noble Lords will appreciate the potential importance of decisions affecting liberty and that the use of artificial intelligence may well involve profiling, which does not have an unblemished record.

This amendment would alter the term “solely,” because “solely” could mean one click on a programme. The term “significantly”, proposed in the amendment, is not the best, but I think it will serve the purpose for this evening. I do not claim that this is the best way to achieve my objective, but I did not want to let the moment pass. The Justice and Home Affairs Committee —I am not speaking as its chair—has had this issue raised a number of times. The Information Commissioner is one who has raised the issue. Elizabeth Denham, before she left the office, said it should not just be a matter of box-ticking. The guidance of the Information Commissioner’s Office provides that there should be the following three considerations:

“Human reviewers must be involved in checking the system’s recommendation and should not just apply the automated recommendation to an individual in a routine fashion; reviewers’ involvement must be active and not just a token gesture. They should have actual ‘meaningful’ influence on the decision, including the ‘authority and competence’ to go against the recommendation; and reviewers must ‘weigh-up’ and ‘interpret’ the recommendation, consider all available input data, and also take into account other additional factors.”


The Minister will, I am sure, refer to the current government consultation on data, Data: A New Direction, published in September. We dealt with this issue by putting the amendment down before then but, even so, the consultation questions the operation and efficacy of the Article 22 of the GDPR, which, as I said, is the basis for Section 14. I appreciate that the consultation will have to run its course but, looking at it, the Government seem very focused on the economic benefits of the use of data and supportive of innovation.

Of course, I do not take issue with either of those things, but it is important not to lose sight of how the use of data may disadvantage or damage an individual. Its use in policing and criminal justice can affect an individual who may well not understand how it is being used, or even that it has been used. I was going to say that whether those who use it understand it is another matter but, actually, it is fundamental. Training is a big issue in this, as is, in the case of the police, the seniority and experience of the officer who needs to be able to interpret and challenge what comes out of an algorithm. There is a human tendency to think that a machine must be right. It may be, but meaningful decisions require human thought more than an automatic, routine confirmation of what a machine tells us.

The government consultation makes it clear that the Government are seeking evidence on the potential need for legislative reform. I think that reform of Section 14 is needed. AI is so often black-box and impenetrable; even if it can be interrogated on how a decision has been arrived at, the practicalities and costs of that are substantial. For instance, it should be straightforward for someone accused of something to understand how the accusation came to be made. It is a matter of both the individual’s rights and trust and confidence in policing and criminal justice on the part of the public. The amendment would extend the information to be provided to the data subject to include

“information … regarding the operation of the automated processing and the basis of the decision”.

It also states that this should not be “limited by commercial confidentiality”; I think noble Lords will be familiar with how openness can run up against this.

Recently, the Home Secretary told the Justice and Home Affairs Committee twice that

“decisions about people will always be made by people.”

The legislation should reflect and require the spirit of that. A click of a button on a screen may technically mean that the decision has a human element, but it is not what most people would understand or expect. I beg to move.

[Lord Paddick (LD)]

My Lords, with the leave of the Committee, I will speak briefly. In my comments on the previous group on which I spoke—the one beginning with Amendment 278—I did not mean to suggest that the noble Lord, Lord Carlile of Berriew, was filibustering. I tried to inject a little humour into proceedings, bearing in mind the wide range of issues that we discussed in the debate on that group and the length of that debate. I joked that it was beginning to look like a filibuster. I have apologised to the noble Lord but I wanted to include that apology in the official record.

We support this important amendment. As my noble friend Lady Hamwee said, Section 14 of the Data Protection Act 2018 provides some safeguards against important decisions being taken by automated processing. It allows a human review on appeal with the subject having been told, but only if the decision was “solely” taken automatically, rather than “significantly”, as my noble friend’s amendment suggests. Experience in the American criminal justice system of using algorithms shows that bias in historical decisions is replicated, even enhanced, by algorithms. We therefore support this amendment.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Hamwee and Lord Paddick

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Paddick (LD)]

I am very grateful to the Minister. Perhaps I may gently suggest that if something akin to what the noble Lord said was contained even in the Explanatory Notes explaining that part of the Bill, we would not have to spend time in Committee trying to understand what it was about. I know that my noble friend Lady Hamwee and I have looked everywhere possible to try and decipher what that meant—to no avail. It may be that to parliamentary draftspeople it is as clear as day—but for us lesser mortals it is not. I beg leave to withdraw the amendment.

[Baroness Hamwee (LD)]

My Lords, before my noble friend withdraws his amendment, I should say that he is quite right. There are a number of different points at which it is important for people to understand what legislation means. For us looking back at legislation, we can do so online and it is important that the changes go up online as soon as possible, including in the previous legislation. This is quite a serious point that is, of course, much broader than the Bill—but I am going to infuriate the Committee by getting it off my chest. One can spend an awful lot of time trying to understand what a piece of legislation, passed 20 years ago and amended five times, actually amounts to unless what is put online is completely up to date. It wastes an awful lot of noble Lords’ time and must waste Ministers’ time trying to get their heads around it if the Explanatory Notes do not set out those things intelligibly.

[Lord Paddick (LD)]

I beg leave to withdraw the amendment.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Hamwee and Lord Paddick

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

[Baroness Hamwee (LD)]

My Lords, the noble Baroness has referred to the Justice and Home Affairs Committee, which I chair. It is currently undertaking an inquiry into the use of new technology—I stress new, by which I mean artificial intelligence—and the application of law. I do not wish to pre-empt whatever the committee may recommend. We will certainly look at issues of so-called hard or soft regulation. We will also look at procurement standards, transparency—by which I mean intelligibility both to those who use AI and to those who are the subject of it—and accountability. The list of issues seems to increase with every evidence session. At a recent session, a witness said

“certain things with AI will always be the same. We will always have a data issue, a bias issue and an explainability issue”.

I do not think it appropriate to go into any detail this evening, other than to say, “Watch this space”.

[Lord Paddick (LD)]

My Lords, we support the principle of the amendment the noble Baroness, Lady Chakrabarti, has tabled. Picking up a theme here, facial recognition technology is an example of where officials are concerned. For example, the guy who is responsible for the regulation of CCTV has very serious concerns that the technology is running ahead of the regulations and that this needs to be addressed. As my noble friend Lady Hamwee said, the use of artificial intelligence is another new and developing area where Parliament should at least consider whether these new technologies need to be subject to debate in Parliament and regulation.

However, I am not sure about the example of drones, which are sort of a replacement for police helicopters. I left the police in 2007; 14 years ago, with something not very imaginatively called “heli-tele”, police helicopters could pick out people’s faces from however many thousand feet they were up in the air and transmit those images to officers on the ground who had television monitors in front of them. It was extremely useful to see where crowds were moving in a fast-moving demonstration situation. Clearly, you can have a lot more drones than you can have helicopters, because they are a lot cheaper and so forth. The increased use of drones may be of concern, but the way in which they are being used is no different from what huge helicopters have been doing for years, whether members of the public were aware of it or not.

The noble Baroness, Lady Jones of Moulsecoomb, talked about the Mayor of London and water cannon. Again, I think it was Theresa May as Home Secretary who refused to allow their deployment. Unfortunately, if the Mayor of London had actually listened to experts in public order policing, they would have told him that they are more or less useless for the sort of things he was hoping to use them for. I think he felt that water cannon would be useful following the widespread riots across the country. In fact, in that scenario they are completely useless. They are lumbering giants of things that cannot possibly keep up with marauding gangs going round and looting and so forth.

I think my noble friend Lady Hamwee has hit the nail on the head—it is new technology that needs to be considered and regulated, or at least debated in Parliament to see whether it needs to be regulated. To that extent, I support the amendment in the name of the noble Baroness, Lady Chakrabarti.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Hamwee and Lord Paddick

Lords Hansard - part two & Committee stage
Monday 25th October 2021 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, of course I would be glad to be updated, but I think that the Minister will recognise that, as the Bill stands, the position I spelled out would be possible: information could be shared with immigration authorities—and, of course, the Data Protection Act has an exemption in that regard.

[Lord Paddick (LD)]

I thank the noble Baroness for her explanation. I did not quite understand when she seemed to suggest that this was all facilitation and to enable different authorities to share information—and that there was no compulsion to do so. Could she therefore explain Clause 17, where it says that,

“if the Secretary of State is satisfied that … a specified authority has failed to discharge a duty imposed on it by section 7, 13(6), 14(3) or 16(4), or … an educational authority, prison authority or youth custody authority has failed to discharge a duty imposed on it by section 14(3), (4) or (5)(b) or 16(4)”,

then

“The Secretary of State may give directions to the authority for the purpose of securing compliance with the duty”


and can enforce that requirement by a mandatory order? In what way is that voluntarily facilitating the exchange of information? Clause 17 is all about the Secretary of State forcing authorities to share information.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Hamwee and Lord Paddick

Lords Hansard - part two & Committee stage
Wednesday 20th October 2021 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I agree very much with the concerns that have been expressed this evening, and I would because I have an interest which I should declare as a trustee of Safer London whose work is directed to deterring young people from becoming involved in crime. Giving young people the tools they need to resist being pulled into crime is a very wide agenda. As is obvious from the name, the work is confined to London, but it is needed all over.

As well as that, I remember the debates during the passage of the Modern Slavery Bill on what is meant by “exploitation”. I take the point about people—it is not just children—who may be perceived as criminals but who are actually victims, so I understand the calls for much better understanding of child criminal exploitation. I hope that what I am about to say is understood to be support for, not opposition to, the thrust of what is being proposed.

Amendment 52, tabled by the noble Baroness, Lady Newlove, on training is absolutely to the point. If all agencies and authorities were trained to recognise what they are seeing but not recognising, in a way that would answer all the other points that have been made. If the prevention and reduction of crime, which is what these clauses are about, means anything, surely it must include safeguarding. That is prevention. Safeguarding is not defined, which does not surprise me because it is comprised of an awful lot of component parts and is different in different circumstances. I would be interested to know whether the Minister call tell us what is already on the statute book in this area. Are we talking about bringing together provisions that should be brought together that are scattered, as can be the case, or are we talking about something new in statutory terms?

I do not think that we can leave the issue without referring to resources. If there were the resources to extend the excellent work being done by various organisations far more widely, both in the voluntary sector and to statutory authorities, I do not think we would be talking about all this. But I am quite convinced that it comes back to training to recognise what should really be in front of people’s eyes. I know it is easy for us, standing up in the Chamber, to say that, and I would not like to do the job that some police officers, teachers, health workers and so on do. But the training should support the achievement of everything that noble Lords are seeking this evening.

[Lord Paddick (LD)]

My Lords, there are a number of general points I need to make about the new legal duties to support a multiagency approach to preventing and tackling serious violence. I will try to make them in the appropriate group of amendments, but I hope the Committee will accept that there is a great deal of overlap.

The overwhelming response of the non-governmental organisations I have met with which have concerns about this part of the Bill is that, as drafted, it is actually about forcing agencies to support a police-led enforcement approach to serious violence—not a public health approach, or even a multiagency approach, to preventing and tackling serious violence. The Government’s own consultation on this issue gave three options: a new legal duty on specific organisations to effectively share information with the police; a new legal duty to revise community safety partnerships, the existing and well-established mechanism where local authorities and police forces work together to prevent and tackle crime, and where the local police chief and local authority chief executive are equal partners in doing whatever each partner and others can do to reduce crime and disorder; and a voluntary non-legislative approach. There was more support for a legislative approach than a voluntary one, but more respondents favoured enhancing community safety partnerships—40%—compared with a new legal duty to provide information to the police—37%—and, tellingly, the police supported equally options one and two.

Even the police, the sector most likely to benefit from a police-led enforcement approach, were ambivalent as to whether it should be a truly multiagency approach by enhancing community safety partnerships or a police-led enforcement approach. So why did the Government opt for the latter and not the former? A police-led enforcement approach was the Government’s preferred option from the beginning. These amendments, which we support, are the first manifestation of challenging that police-led enforcement approach, in that the legal duty does not sufficiently recognise that many young people, particularly those involved in county lines, are victims of criminal exploitation rather than free-acting criminals. Henry Blake is a former youth worker who draws on his personal experiences of working with at-risk young people in his powerful film, “County Lines”—a drama about one young man who is drawn into county lines drug dealing. I would highly recommend this film to any noble Lord who is unaware of the realities of county lines.

Many young people lacking family support and living in poverty find themselves groomed by adults who appear to show them the love and concern they desperately seek, and who treat them to meals in burger restaurants and buy them new trainers—something their often lone parent cannot afford. They promise them money, not just so they can afford the latest designer clothing that they need if they are not to be bullied by gangs, who see those who do not wear designer labels—even Nike and Adidas—as targets. It is not just so they can go to McDonald’s whenever they want, but so that they can help their mum put food on the table and make sure their younger sister has decent clothes to wear. I hope noble Lords can see how easily vulnerable young people are drawn into criminality, not just for pecuniary advantage but for the sense of belonging and the sense that someone is at last paying them some attention. For many, it is as much an emotional need as a financial one.

Of course, the reality is very different. The adults exploiting these young people take the vast majority of the profits of the drug dealing in which they are involving these young people whom they have groomed, and the youngsters take all the risks, often ending in violence from rival drug dealers. These young people are victims of criminal exploitation, and each one of us is to blame—not them. It is our fault that their single mothers have to do three minimum wage jobs to pay the rent and put food on the table and so, through no fault of their own, can rarely be there for their kids as most wish they could be. It is our fault that too many people do not have a decent place to live, because they cannot afford private rents for an appropriately sized home in a good state of repair, and that there is a shocking shortage of social housing and much of what exists is in an appalling state of repair. It is our fault that, as the cost of living spirals upwards, we take away £20 a week in universal credit from those most in need. The Government’s response is to force other agencies to divulge information that makes it easier for them to prosecute these victims of criminal exploitation.

That is why the Bill needs to radically change from a police-led enforcement approach to preventing and tackling serious violence to a truly public health and multiagency approach, starting with—although this is only the beginning of the changes needed—putting the safeguarding of children involved in serious violence in the Bill. That must include, as the noble Lord, Lord Rosser, suggests in his Amendment 50, and as both Barnardo’s and the Children’s Society have suggested, including a statutory definition of child criminal exploitation in the meaning of exploitation in Section 3 of the Modern Slavery Act 2015 and, as the noble Baroness, Lady Newlove, suggests in her Amendment 52, training for police officers in particular, to ensure that they are aware of child criminal exploitation and actively seeking evidence of such exploitation.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Hamwee and Lord Paddick

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am not sure whether the knocking sound behind us has been someone trying to get in or someone trying to get out of the Chamber.

The House recently established a new Justice and Home Affairs Committee, which I am lucky enough to chair. We are currently looking at new technologies and their application in the law—wider than the Bill, but very pertinent to it and to crime prevention and reduction, and to policing and sentencing. Artificial insemination—

[Lord Paddick (LD)]

Oh!

[Baroness Hamwee (LD)]

I hope Hansard does not repeat that.

Artificial intelligence has huge potential benefits and raises huge concerns, and it is not anticipating the work of the committee to refer to them this afternoon. For instance, collaboration between authorities—Part 2 of the Bill—requires the sharing of information. Will this contribute to profiling and predictive policing? Predictive policing algorithms identify likely crime hot spots; officers are deployed there, and so more stop and search takes place and more crime is reported. It is a feedback loop; a self-fulfilling prophecy which can teach the algorithm to alert the user to particular geographical areas, communities and ethnicities. It has been put to the committee that it is important to involve at a very early stage of the process, and in a meaningful way, members of the communities that are likely to be at the sharp end of these algorithms, and not to leave it to people such as the witness or me—a white, middle-class, university-educated person, who is unlikely, one hopes, to be profiled as a future risk—because even with the best will in the world, we might not spot some of these problems and risks. A tick-box exercise is not enough.

Trust in systems translates to trust in authorities and in government itself—or, of course, the converse. The Bill permits the disclosure of data, but who owns it? What consents are required? Who knows about disclosure? We all expect some information—for instance, that between us and our medical professionals—to remain confidential. Transparency is important at an individual level, as well as more broadly. A defendant, or indeed someone questioned, will find it difficult to establish what technology—what combination of facial recognition technology, number plate recognition, predictive techniques—has led to his being identified as a suspect. If he cannot identify it, he cannot challenge it. How are we to ensure governance, regulation, accountability and scrutiny on an ongoing basis in the case of machine learning?

The technology has to be procured, and it will be procured from the private sector, whose interests are not the same as the public sector’s, and it is differently regulated, if at all. How can we be sure that purchasing authorities in the public sector understand what they are procuring? In the US, some police departments accepted a free trial of body-worn cameras, but they came with an obligation to be part of the manufacturer’s data ecosystem, including an obligation to use that company’s software and store data on its servers.

It is said that we need “human override”, but humans can get it wrong too. Human operators need to understand the limitations of particular technology to avoid overreliance on it or misinterpretation; they need to retain their critical factors.

These issues apply to identification, the extraction of information from electronic devices, monitoring and more that is in the Bill. They are the context for the development of policing and sentencing, such as the new cautions; for scrutiny, both general and in particular cases; and for our assessment of ethical considerations. We should be clear that there are clear principles to be applied. The National Audit Office has just reported on the national law enforcement data programme from a value-for-money point of view, of course, but there are other costs. The NAO mentioned, as I have, trust and the cost of damaging it. AI impacts society, communities, democracy and individual rights. We must be clear about what we are doing and why.

Counter-Terrorism and Sentencing Bill

Debate between Baroness Hamwee and Lord Paddick

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, I think that, on the last grouping, the question which lay behind this amendment was answered—but let me just check. Clause 42 covers the drug testing measure. My first thought was whether a subject could be caught up in being tested and fail the test because someone else in the house was using drugs which were detected, perhaps under his fingernail. The amendment raises the issue of reasonable suspicion, but I think the noble Lord has confirmed condition D—that the Secretary of State reasonably considers, in this case, drug testing necessary for the purposes we have talked about. It is the “reasonableness” of that consideration; I think he has confirmed that that will apply. So that he can confirm it again, I beg to move.

[Lord Paddick (LD) [V]]

My Lords, our Amendment 30E relates to subjecting the subject of a TPIM to drug testing for class A and class B drugs only, at a police station by a constable only. I have rather different questions from those of my noble friend Lady Hamwee. The question I cannot find an answer to—and I cannot think of one myself—is, “Why?” One might cynically argue that a suspected terrorist high on cannabis might be too chilled out to conduct a terrorist attack; conversely, if the Government fear a suspected terrorist might do something stupid, for example being emboldened under the influence of a class A or class B drug, why not test for alcohol?

Bearing in mind the restrictions on the subject’s movements and communications and on who they can associate with, where do the Government think the subject of a TPIM will get his supply of class A or class B drugs? Indeed, if the subject is taking class A or class B drugs, under the noses of the police or security services, does this not raise questions about what else he might be getting his hands on, such as explosives? In short, what is the point, other than placing further restrictions, being even more intrusive and making the subject’s life even more difficult?

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Paddick

Monday 17th December 2018 Lords Chamber

[Lord Paddick]

My Lords, I am grateful to the Minister for her explanation. What comes across to me in her response to this and other amendments is that there is a degree of transparency and accountability, in that the Independent Reviewer of Terrorism Legislation will look at the Schedule 7 powers and the IPC, presumably, will examine those under Schedule 3. It is all very well for the Government, the independent reviewer or the Investigatory Powers Commissioner to be satisfied that these powers are being used appropriately, but they are not the people who need to be convinced that they are being used fairly: it is the communities—particularly the Muslim community—that need to be convinced. Publishing the religion of people being subjected to these powers is crucial if we are to get the Muslim community to work with us to defeat terrorism.

As I said when I introduced the amendment, people, or groups, can switch almost overnight. For example, the attempted bombings on 21 July 2005 were a carbon copy of those on 7 July, which did not go according to plan. They were supposed to involve four bombs on the Underground, and the copycat attacks on 21 July involved three on the Underground and one on a bus because of what happened on the 7th. That is how quickly the first attack was copy-catted by another group. It is the friends, neighbours and close associates of these lone wolves and groups of friends who will pick up on the changes in their behaviour that show they are moving from being radical to being violent and potentially deadly. It is therefore absolutely essential that we do everything we possibly can to win the trust and confidence of the communities from which these people come.

I am encouraged by the Minister saying that the Home Office statistician will be looking at the issue.

[Baroness Hamwee (LD)]

The Minister said that the Government will be looking at this with the chief statistician and the police. Can she give a timeframe for that? If she cannot do so now, can she come back to the House before too long with an idea of when we might expect some further information on this work?

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Paddick

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Baroness Hamwee]

My Lords, Clause 18, which has just been agreed, and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes, and the JCHR has proposed a number of amendments.

As regards Amendment 47, currently under the Police and Criminal Evidence Act a person who is arrested but not charged or convicted of a terrorist offence may have his data retained for three years for security purposes with the consent of the Biometrics Commissioner. The Bill removes the requirement for that consent. In the view of the JCHR, the oversight of the commissioner is a matter that gives confidence to the public that the powers are used only where “necessary and proportionate”, and we are not aware that this oversight impedes the ability of the police to undertake counterterrorism work.

The Government responded to our first report, stating that they did not agree that,

“it would be appropriate or responsible to reduce the powers available to the police”,

but we did not propose the removal of those powers. We recognise the logic in harmonising the retention periods for biometric data so that cases are treated in the same way, whether an individual is arrested under PACE or under the Terrorism Act, but we were concerned about removing the requirement for the consent of the Biometrics Commissioner, and I have not seen a response from the Government to that point.

Therefore, the obvious question is: what is the justification for the biometric data of a person unlawfully or mistakenly arrested being exceptionally stored rather than destroyed? If the aim is to align the procedures, why not add to the protection by the commissioner having oversight of both categories of DNA retention under both powers? The JCHR made the comment, and did not make it lightly, that it was concerned about a race to the bottom of human rights protections. I beg to move.

[Lord Paddick]

My Lords, I support what my noble friend Lady Hamwee has said. The report of the Joint Committee on Human Rights talks about the oversight of the Biometrics Commissioner giving the public greater comfort that such powers are used only where necessary and proportionate, and it would seem that no valid reason has yet been presented by the Government for removing that oversight.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Amendments 48 to 53 would remove the proposed extension of national security determinations, which the Minister has explained, for the retention of biometric material to five years in six existing provisions. The Minister has also explained the role of the chief police officer and the rolling determinations, if necessary, but a review every two years for a fresh determination is required. The Bill will change that to five years. We are not questioning the retention as a legitimate aim, rather we are questioning the period of time and whether five years is proportionate for retaining the biometric data of people who have never been convicted of a crime, particularly in the absence of the possibility of a review. The Government have told us that operational experience has shown that in many cases the two-year period is too short and that cases of national security concern will often pose a more enduring threat. That does not entirely go to answer the point of the initial period.

The retention of biometric data is a significant intrusion on an individual’s right to privacy. It is lawful as long as it is not blanket and indiscriminate, but is it proportionate without the possibility of a review? We think not. I beg to move.

[Lord Paddick]

My Lords, I rise briefly to support these amendments. Other than for the convenience of senior police officers in having to review these cases every five years as opposed to every three, I do not understand what is to be achieved operationally by extending the period from three years to five when the period of retention can be extended every three years.

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Paddick

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Baroness Hamwee]

My Lords, as we have heard, registered terrorist offenders, after release, have to notify the police of certain details and of changes to those details. The periods for which they are required to notify range from 10 to 30 years, depending on the length of the sentence, and the reporting provisions apply automatically without the possibility of review.

In considering the provisions, the Joint Committee on Human Rights commented that this was an interference with the Article 8 right to privacy, which of course does not mean that it is always objectionable. I understand that the domestic courts heard that the current scheme, when applied to 10-year periods, is in accordance with the law, in pursuit of a legitimate aim and proportionate, and so there is not a violation of Article 8. However, the courts have previously held that indefinite reporting requirements do violate Article 8, and, importantly, the European Court of Human Rights held that notification and registration requirements for up to 30 years in very similar circumstances to the UK system were compliant with Article 8 only because a review was possible. The sex offenders register has a review at the 15-year mark. We thought that that was a comparator worth referring to.

We are concerned that the revisions to the current system are likely to be considered as disproportionate and unjustified interference with the Article 8 rights because of the lack of the possibility of a review. In the light of the increased level of intrusion into private life and the lengthy period of time for which the requirements are imposed in some cases, we think that a review should be added to the provisions—that is, a review of the necessity of the notification and registration requirements—and that each individual subject to the requirements should have the right to make representations at that review.

I understand that the Government do not regard a review as necessary to ensure proportionality because the period is not indefinite. Indeed, the requirements are not indefinite but they might last for 30 years, which, if you are the subject of them, must feel close to indefinite. What harm would be done by providing for a review and right of appeal?

We anticipated that the Government might be concerned about matters being dealt with in open court, so, as well as the review involving the police, we provide in proposed new subsection (5) that the right of appeal can be dealt with by the Special Immigration Appeals Commission.

There are very detailed notification requirements in many sections of the 2008 Act, and non-compliance carries penalties. In the Public Bill Committee in the Commons, the Minister described these as providing,

“the necessary but proportionate means to monitor the whereabouts of convicted terrorists”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 106.]

There are two issues: the means and, separately, the period. These are linked but, in my view, are not exactly the same. The amendment deals with both but was prompted in particular by the length of the period. I beg to move.

[Lord Paddick]

My Lords, as I have added my name to this amendment, I should like to say briefly that we support the principle that there should be the possibility of a review to ensure that these provisions are necessary and proportionate. The appeal process appears to get round any possible issues with matters that cannot be placed in the public domain.

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Paddick

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,

“the person did not know, and had no reason to believe”,

and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,

“to commit or encourage acts of terrorism”.

At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.

Amendment 13 adds the phrase,

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.

[Lord Paddick]

My Lords, I rise to support the amendments in this group. Section 58 of the Terrorism Act 2000 already makes it an offence if a person collects or makes a record of information of the kind likely to be useful to someone committing or preparing an act of terrorism, or possesses a document or record containing such information. Some examples will be of obvious use to terrorist activity—instructions on how to make a bomb, say—but others are not so obvious.

I walk every morning from St James’s to the House around the time of the changing of the guard. It would be useful for me to know which days the ceremony is being mounted so that I could avoid the crowds, but it would also be useful to a person preparing a terrorist attack on the soldiers taking part in the ceremony. The difference between my actions and the terrorist’s actions are simply the purpose to which that information is being put.

Subsection (4) inserts a proposed new subsection (3A) after Clause 58(3) describing a reasonable excuse defence that at the time of the person’s actions, they did not know, or had no reason to believe, that the document or record in question contained or was likely to contain information of a kind likely to be useful to a person committing or preparing an act of terrorism.

I know that the days on which the changing of the guard takes place is information likely to be useful to a person planning a terrorist attack on soldiers taking part in the ceremony, and I know that when I look at it. A reasonable excuse defence would not necessarily stop police being able to arrest and detain me for looking up when the changing of the guard takes place, even if the CPS decided that it was not in the public interest to charge me.

It may be considered to be a trivial excuse but it shows the breadth of this original offence. Indeed, the Independent Reviewer of Terrorism Legislation warned against Clause 3, saying that it risked criminalising those who view material such as bomb-making instructions,

“in disgust, shock and disapproval”.

Amendment 11, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, seeks to ensure that the one click offence is mitigated by providing that it must be,

“part of a pattern of behaviour”.

While I support that amendment, for the reasons I have already given, it does not go far enough. I have therefore added my name to Amendments 12 and 13, in the name of my noble friend Lady Hamwee. The former refers to an intention,

“to commit or encourage acts of terrorism”,

and the latter includes the following phrase:

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Hamwee and Lord Paddick

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

[Baroness Hamwee]

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

[Lord Paddick]

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

Policing and Crime Bill

Debate between Baroness Hamwee and Lord Paddick

Monday 18th July 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, another day, another 323 pages of Home Office legislation. I realise that for the noble and learned Lord, who has had to immerse himself in it, this must be a bit like having his client settling at the door of the court, as he will not be able to continue with it. We have a Long Title which is long enough for the antennae of many noble Lords to twitch with the prospect of introducing their specialist subject—the noble Lord, Lord Moynihan, demonstrated that amply.

As it always does, the House has demonstrated much expertise in, and practical experience of, aspects of policing. This is called the Policing and Crime Bill but, from the preponderance of briefings that I have received—other noble Lords will, no doubt, have as well—I wonder whether a significant part of it should have been led by the Department of Health. The noble Lord, Lord Brooke of Alverthorpe, made a similar point, though perhaps coming from a different perspective. There are four clauses, out of more than 150, on powers under the Mental Health Act. While the organisations from which I received briefings gave some welcome to these, the concern to do more and better comes through loud and clear. As Mind pointed out—and the noble Baroness, Lady Howe, reminded us—the Mental Health Act 1983,

“allows people to be deprived of their liberty when they haven’t committed, or are not suspected of having committed, a crime”.

Concerns about the places of safety provisions have been expressed in the Chamber and from outside including, most recently, from Black Mental Health, some of which came through on my iPad after we had started the debate.

Inevitably, there has been a focus on resources. I hope we might hear something positive from the Government—a Government who acknowledge that mental health services are a Cinderella. My right honourable friend Norman Lamb had seven amendments in the Commons. Reference has been made to some of his concerns, but not to disallowing the use of tasers by police officers on psychiatric wards. They have no place in mental health care—I stress care—nor, really, do the police. We will pursue his concerns and, I suspect, more, as we have more scope in this House.

According to the Long Title, the Bill will,

“make provision to combat the sexual exploitation of children and to protect children and vulnerable adults from harm”,

but not as extensively as the children’s organisations which work so effectively together point out. We have heard concerns about extending child abduction warning notices, online offences, disrupting grooming and therapeutic support for victims of abuse, which is something I feel strongly about.

As the noble Lord, Lord Blair, said—and I think the noble Lord, Lord Rosser, did too—the Bill was introduced as “finishing” the job of police reform. Will it ever be finished? Some 42 police forces provided information to a Liberal Democrat FOI request about 101 calls. This is nothing to do with Nineteen Eighty-four—I have not got my Bills mixed up. From 2012 to date, 3.5 million calls were unanswered. These 101 calls may not be about emergencies, but that does not mean they are not about serious matters. To the citizen, any call to the police which is unanswered is serious.

I share doubts about whether the administrative arrangements will lead to increased confidence. Much has been said this afternoon about local collaboration between the blue-light services. Along with my noble friend Lady Bakewell of Hardington Mandeville, I feel that local authorities should have a leading position in decisions around this. Allowing police and crime commissioners voting rights at local authority meetings is, at the least, questionable. My noble friend referred to the term “good will”, which is an immensely important point, and I remember the chambers of commerce report to which she referred.

I turn to governance issues. Maybe the summer holidays will re-energise us all and enable us to come up with an enormous raft of amendments to debate the points to which our attention was drawn by the noble Lord, Lord Harris, and by the noble Lord, Lord Bach, in his compelling speech. We are told all this is based on efficiency and effectiveness, but whether that is fulfilled rather depends on the criteria you set.

On the subject of confidence, I take the point made by the IPCC—as it still is—that a change of name to Office for Police Conduct is likely to be read by the public as meaning a police body, not an independent one, as my noble friend Lady Harris of Richmond said. There is far more to be addressed on conduct and complaint matters, but I will indulge myself by saying that “super-complaint” seems to me to be a very unfortunate term.

There is also appropriate concern about what has been called the constitutional novelty of directly elected politicians taking on a quasi-judicial function.

How the police use civilian staff seems to have swung to and fro over quite a short period. When I was first concerned with the Metropolitan Police’s budget, through my membership of the London Assembly, we often questioned what seemed to be a widespread view that you could not, for instance, handle human resources if you did not wear a uniform. The pendulum has swung a lot. Whether expanding the role of civilian staff and volunteers—no doubt driven by cost-cutting—jeopardises the service, is something which we must discuss. I recognise a lot of what the noble Lord, Lord Blair, was talking about. I do not know whether I should be concerned, but I am, about the impact of all this on neighbourhood policing. Its status, and the investment in it, seems to have been reduced—I might even say downgraded—over not a very long period.

The provisions about the detention of 17-year olds show the value of the European Convention on Human Rights. We have a 35-page human rights memorandum and there are, of course, enhancements of human rights in the Bill. Like others, I suspect this is because of the scrutiny role of this House. I do tend to go straight for the problem areas and forget to acknowledge the good bits. There is also an 85-page delegated powers memorandum, so that might turn out to be material for scrutiny.

The requirement to confirm nationality will take us to human rights issues and, for the second time in a matter of months, to the confusion of the roles of police and immigration officers. This was raised by the Joint Committee on Human Rights, of which I am now a member. In a letter to the then Home Secretary, the chair of the committee wrote:

“Although the Government has accepted that Article 14 of the Convention may be engaged in respect of foreign nationals, the ECHR memorandum does not consider any potentially differential impact on BAME UK citizens”.

She referred to the,

“discretion to the individual officer as to whether or not to ask the arrested person to state their nationality. This raises the prospect of UK nationals who are members of ethnic minorities being more likely to be asked to state and then prove their nationality than other UK nationals”,

with a risk of discrimination contrary to Article 14 in conjunction with Article 8. On behalf of the committee, she asked the Government to,

“address this issue of possible differential impact and explain how this differential impact can be avoided or justified”.

The answer was that:

“it is considered that such interference”—

requesting proof of nationality—

“is proportionate and justified to the pursuit of a legitimate aim—namely being able to properly exercise an effective immigration control”.

There is either a circularity or an assumption about what the problem is there. It does not answer the question but answers another point entirely. The Minister replying pointed out that,

“both immigration officers and the police must comply with public law principles”,

including,

“the requirement to act reasonably in all circumstances”,

and that their actions or decisions,

“may be challenged in the courts by means of judicial review”.

I have to say that I do not find that convincing.

Maritime enforcement also raises human rights issues and issues around the refugee convention. We do not seem to have a Minister with particular responsibility for refugees now, which is a pity because their plight must not go out of the headlines and I know that this House will not relegate the matter.

The noble Lord, Lord Condon, referred to a long list of problems that will have to be addressed because of our exit from the EU. Would that we could sort them out in the Bill.

I have said enough for today except for my last note, which says, “Whinge about the timing of Committee”. I am not sure whether this Policing and Crime Bill will be light relief from the Investigatory Powers Bill, as jam in the sandwich during our two weeks in December—

[Lord Paddick (LD)]

It is in September.

[Baroness Hamwee]

I meant September; that was wishful thinking. I do not suppose that that sandwich arrangement would be particularly welcome to Ministers either, but it will not deter us from raising issues on either Bill which we feel must be raised. On the same basis as it takes longer to write a piece for the Sun than for the Guardian, there may be rather a lot of amendments.

Immigration Bill

Debate between Baroness Hamwee and Lord Paddick

Wednesday 5th March 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, Amendment 30 is about administrative review. I am not commenting on the reduction in rights of appeal per se, but if we are to see a reduction of the basis of appeals, and if they are to be reduced on the basis of the use of administrative review, the procedure must be robust and trusted. However much we hear that it will be robust—I have seen the statement of intent—it is fair to say that critics have not been won over. Many noble Lords will have received briefings, including examples of reviews previously undertaken under different—but not so very different—procedures, and I shall give a couple of them to the Committee.

The first is a student applying to transfer his tier 4 leave to a new passport. The university provided letters quoting the relevant Home Office guidance confirming that a new certificate of acceptance for studies was not required because it was not a fresh application, merely a transfer to a new passport, but the application was refused on the grounds that the student did not have a valid certificate. He applied for administrative review. He was outside the UK and needed to be back here quickly to get on with his studies. He waited a couple of weeks and then decided he had to submit a fresh application. The review upheld the original decision on the grounds that he did not have a valid certificate.

My second example is a student applying for leave for a master’s course after having studied as an undergraduate in the UK and undertaken two years of tier 1 post-study work leave. The application was refused because the case officer thought that the five-year limit on degree-level study would be exceeded, taking into account the two years, but in fact the case worker had incorrectly included the two years of post-study work. Reconsideration was requested, but the casework team would not overturn the refusal.

The point that decisions should be got right the first time is entirely reasonable and appropriate, and I am sure my noble friend accepts that. One can also entirely understand the point that reviewing colleagues’ work as a substitute for appeal is counterintuitive. Not only are colleagues being asked to attack, as it were, their colleagues’ work, but they are actually attacking the Secretary of State’s decision. One can understand their diffidence in doing so.

The amendment I propose does not seek not to have administrative review; it seeks to find a way to get procedures into a document that will require the approval of both Houses of Parliament. This might sound a rather heavy-handed way of going about something administrative, but we are talking about a proposed substitute for appeals. The amendment seeks to have procedures agreed by an independent person—I stress the term “independent”—with oversight of reviews as they take place by an independent person and a lapse after five years unless Parliament thinks that the procedures are suitable to be continued. This would be negative.

I am aware that the Home Office proposes that the process which it plans will be included—or, at any rate, it will ask for it to be included—in the chief inspector’s reviews. That is necessary, but I am seeking more than that. I have not tried to define “independent” in the amendment, but I do mean independent. There are in many parts of our legislation provisions for independent persons. By and large, the people who are appointed are independent. Once they have been given a remit, they tend to prove themselves really very independent and sometimes quite forthright.

I have comments on the statement of intent that was included in the bundle which was helpfully circulated. I am not going to take up the Committee’s time on that, other than to say that I note that the time limit for the applicant to seek an administrative review is 10 days, or two days if they are in detention—which seems to be very little if they want to take advice. I wonder how the Home Office will ensure that the limit of 28 days to come to a decision will be met, given the current timescales of which we are aware. I wonder, too, whether my noble friend can explain what opportunity there will be for an applicant—the “customer”, as he is called in the statement—to make representations on the facts to the reviewer.

However, that is not at the heart of this amendment. When I raised the issue of trying to stiffen the arrangements for reviews with those who work in the field, they said that when the issue had been discussed in 2006, when the House was talking about out-of-country reviews, administrative review became a “chimera” chased through many hours of debate, a “red herring”, and a “scarlet pimpernel”. We do not have a “smokescreen” in there; I will not pursue what other metaphors there might be. I thought that that was harsh, but it is important that we have reassurances on how we are going to have real detail on this that both Houses can consider.

In the statement of intent, in answer to the question of how it can be confident that it will be able to operate administrative review effectively, the Home Office referred to the current operation overseas—where there is a strong record, with over 90% of reviews completed within the target of 28 days for the quarter in question—and said that administrative review also makes a difference in entry clearance cases: in 2012, the initial decision was overturned in 21% of cases. I think that my noble friend would understand that some of this is in the eye of the beholder. It rather depends on whether you are the applicant as to how you perceive this. I note that success is expressed here in terms of time limits rather than substance. I suppose we could really know if administrative review is working well only if it were possible to run it as a sort of shadow to the appeals process—but we cannot, to my mind anyway, run two systems in parallel.

Therefore, the amendment focuses on how to get as robust and trusted a system as possible. Having said that—this is a trite point but it needs to be made again at this point in the debate, and I am sure that my noble friend will agree—there should be a robust, trusted system of internal review in any event, because this is about making the right decision as efficiently, effectively and quickly as possible. I beg to move.

[Lord Paddick (LD)]

My Lords, I support Amendment 30, at least in principle. I support the move that the Government are trying to make to avoid abuse of the system of appeals, whether by unscrupulous organisations which try to make money from endless and inevitably futile appeals that exploit not only the taxpayer but also the applicant, or by those who are not entitled to be here or come here but who want to exploit the system in order to extend their stay, despite not having legitimate grounds to stay. However, before I can support removal of the right to a judicial tribunal appeal, I would ask the Minister for reassurance that the proposed replacement with an administrative review will provide an equally reliable route of appeal.

My noble friend Lady Williams of Crosby and I share a common concern about the culture within the Home Office to which my noble friend Lady Hamwee alluded—that it would be very difficult for an officer in the Home Office, particularly someone of equal grade to the original reviewing officer, to overturn a decision made by their colleague. Perhaps I can help the House with a definition of “independent”, to which my noble friend Lady Hamwee refers in this amendment. Nobody can be a commissioner of the Independent Police Complaints Commission if they have previously been a sworn police officer. One would expect a completely independent person who reviews these decisions to be somebody who has not been and is not currently a member of the Home Office.

Under the current system, even when the presenting officer for the Home Office at the judicial tribunal has reviewed the case, a high proportion of those appeals are still successful. Can the Minister tell us how the new system of administrative review will differ from that, and, therefore, give us more confidence that it will be far more effective than the current one? Of course, decisions made under the new administrative review system can still be challenged by judicial review with an appeal to the High Court. Can the Minister reassure us that this route will not be even more expensive than the current judicial review process; or, bearing in mind the recent cuts in legal aid, does the Minister believe that far fewer people will be able to afford to go down that judicial appeal route?

In short, I am not in principle against the new system of administrative review if—but only if—the Minister can reassure the House that it will be far more effective than the current system in achieving swift and just outcomes for applicants. Neither does my noble friend Lady Hamwee call in her amendment for an abandonment of the new system. In the absence of the Minister being able to convince the House on the matters that I have raised, perhaps it would be better for him simply to support my noble friend’s amendment.