Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Jones of Moulsecoomb Excerpts

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

The relevant section in RIPA is Section 81, which is reproduced, although I apologise to the House, because in Amendment 31, which sets out the tests, I should have had an “or” in between paragraphs (a) and (b) in proposed new subsection (5B). However, they are alternatives. I do not suggest that both have to be satisfied, although I suspect that in practice it is likely they would be. RIPA recognises that intrusive surveillance is a particularly serious form of surveillance, and I do not think it could be denied that criminal conduct is serious. We think this is an appropriate definition which, in the past, has clearly satisfied not only Parliament but the Home Office—I believe an amendment on that was accepted by it—and the Constitution Committee has been concerned about this as well. I hope we will find a way to define the level of crime, whether it is this amendment or not—although we think it is a good way to go about it. I will leave it to my noble friend Lord Paddick to talk about disorder.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the amendments in this group pose the important question of when and why the Government should allow people to commit a crime and grant them full legal immunity for it. The Government need to justify granting such a broad legal immunity. They are calling it wrong. I understand why they are doing this: there is a court case at the moment that will influence the outcome of this particular manoeuvre, and there is the inquiry, which I hope will have some tough recommendations when it comes to an end. Personally, I would rather that the granting of immunity was restricted to serious crimes only, as set out in the amendment of the noble Lords, Lord Hendy and Lord Paddick, because that would strike a more reasonable balance between the risks inherent in this criminal authorisation and the types of crime it is being used to fight. When you look at past mistakes, you have to ask, what was the crime the Lawrence family was suspected of committing or being about to commit? What was the point of that? Can that happen again? Yes, of course it can, and it can happen to innocent people. We need to be aware of that when we pass the Bill, as we no doubt will.

Then there is the issue of preventing disorder, which my Amendment 24 seeks to address. This is something I care about a lot, because I go on a lot of demonstrations, protests and campaigns. I am out there, on the streets, and you could argue that I am creating disorder. When I was arrested a few years ago—the only time I ever have been—you could argue that I was creating disorder. What I was actually doing was trying to get between the police and the protestors. I was saying things like, “Could we all calm down?” That is what I said when the senior police officer lost his temper and said, “Nick ’em all.” I feel that preventing disorder is an honourable thing to do, so we should think carefully about what disorder is. It is the Government’s duty to make sure that that is clear. “Preventing disorder” is far too broad a category for authorising criminal conduct.

If the disorder is so bad as to be criminal, it will already be captured in the prevention or detection of crime, but if it is not criminal, we are moving into the territory of peaceful protest and other legitimate gatherings. What is the justification for the state authorising people to commit criminal offences and giving full legal immunity in these cases?

Based on 2019 figures, at the moment in the UK there are more than 500 people who can authorise this sort of immunity for criminal conduct: 312 chief superintendents and 212 chief officers of other ranks. With 500 or so people who can authorise a crime and give immunity, you have to ask yourself: how many mistakes will those people make? And they will; they are going to make mistakes. I see some considerable scope for error in that. I really do not think that the words “preventing disorder” should be in the Bill. If the disorder is a crime then people can be arrested for it; if it is not, why on earth would we let someone else commit a crime to stop something that is not a crime? Perhaps the Minister can explain that to me.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, in speaking to Amendment 25, I shall put the views expressed by the Joint Committee on Human Rights in Chapter 5 of its report on the Bill. I am a member of that committee.

The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,

“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”

These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:

“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”


The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to

“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”

The report concludes:

“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime”


and that

“the power to authorise criminal conduct as contained in the Bill is far too extensive”.

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The noble Baroness talked about the full CHIS function: function, yes, but not the use of powers. As my noble friend Lord Paddick has said, there is a world of difference between deploying a CHIS and granting the right to use criminal conduct with immunity. There is an established statutory purpose, but I refer again to the existing qualification in the Investigatory Powers Act, and that is the threat to national security. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, my name is down to speak on this group of amendments by mistake, but I will take the opportunity to support the noble Baroness, Lady Hamwee, and to point out to the Minister that part of the reason we keep arguing back when she gives us information is that her text rewrites history.

Many of us were there 20 years ago when, to give just one example, we challenged the police about police officers sleeping with—almost exclusively—women to infiltrate campaign groups. I was on the Metropolitan Police Authority for 12 years and challenged successive Met commissioners to say to us that that was not lawful and not something that police officers were encouraged to do. They could not do it because all the police who have leaked and whistleblown about doing that sort of thing have said that they were encouraged to do it. It was implicitly and explicitly seen as one of the perks of the job.

So, if we do not listen, it is not because we do not have a lot of respect for the Minister; it is that we know that what she says is rewriting history. It is not true that police officers were told that it was not lawful to sleep with women on campaigns. I cannot emphasise that enough. I challenged the noble Lords, Lord Stevens, Lord Blair and Lord Hogan-Howe, and Commissioner Stephenson on this very issue and none of them could reply. I hate to attack civil servants but the Minister is getting a rewriting of history from them. That is why we argue back: because we know that it is just not true.

[Baroness Chakrabarti (Lab) [V]]

My Lords, that was a happy accident for the Committee—not that I would ever describe interventions from the noble Baroness, Lady Jones, as accidental. It is also a privilege once more to follow the noble Baroness, Lady Hamwee, who is a tireless and humble servant of your Lordships’ House.

This is another wholly sensible amendment. If it is not accepted, it would be really useful to hear from the Minister under which scenarios a perceived threat to the economic well-being of the nation that did not also constitute either a threat to national security or a serious crime would justify not surveillance but criminal conduct. We need to keep returning to the fact that the Bill is not about a mere investigatory power or the authorisation of covert human intelligence, which were catered for long ago; it is about authorising criminal conduct by agents of the state with total immunity.

A point that I did not address previously was proportionality. We have been told a number of times not to worry about the lack of greater restriction and precision because proportionality will always be a requirement, so that will be safeguard enough. But, of course, proportionality will be left to the discretion of the individual authorising person in any number of agencies listed in the legislation. That is a great deal of discretion. The famous American legal philosopher Ronald Dworkin described discretion as

“like the hole in a doughnut”.

He said that it

“does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’; or ‘Discretion as to which authority?’”

In other words, to leave everything to proportionality in the judgment of the person authorising the crime is no real safeguard at all. So it falls to us to be much more precise about the grounds on which, in a democratic society, we allow something as serious as criminal conduct and criminal immunity for agents of the state.

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[Lord Paddick (LD)]

My Lords, I start by making it absolutely clear that I do not blame the Minister or those who have written her brief. All I am saying to the House is that Members of this House involved in this debate have hands-on experience of these issues. I include the noble Lord, Lord Davies of Gower, and the noble Baroness, Lady Manningham-Buller, in that. I ask the Government to listen very carefully to those with that experience; that is all. I can confirm that the Minister and I are friends.

The amendments in this group seek to prevent the use of criminal conduct authorisations in connection with the activities of trade unions or legitimate political activity, or to compile lists to exclude people from employment because of their involvement with trade unions or their activities. Others seek to ensure that they are not used disproportionately against minorities and to find out how the Government intend to respond to the Undercover Policing Inquiry.

There are difficulties with Amendments 28 and 29. What happens if a trade union, or its members, is involved in criminal or seditious activity, such as, as was suggested earlier, the activities of Arthur Scargill and the National Union of Mineworkers? Who defines what political activity is legitimate? If members of a trade union have been involved in criminal activity, are there not circumstances where they could legitimately be discriminated against by employers?

We have sought to take a more general approach. In an earlier group, I mentioned our Amendment 56A in this group. It might have been better in the group where we discussed prior judicial authorisation, but the amendment did not come to me until midway through that debate. That is why it is in this group. However, it addresses exactly the issues that the noble Baroness just spoke about. Therefore, it is legitimate for it to be in this group.

I believe there is consensus around the House that agents of the state, in particular the police, should not be able to authorise covert human intelligence sources—an informant or agent—to participate in crime, granting everyone involved legal immunity in the process, without more rigorous and independent oversight. Otherwise, the sort of activity that the amendments in this group seek to prevent could take place.

As we have already debated, the problem with the prior judicial authorisation of a criminal conduct authorisation, which has to define very precisely what exactly the CHIS is or is not allowed to do, is that the agent or informant is often being sent into an uncertain, rapidly changing scenario in an uncontrolled environment, often involving chaotic individuals. Straitjacketing the agent into an exact set of actions, stepping outside of which would remove his legal immunity, is not practical, not least if the CCA has to be referred back to a judge, the Investigatory Powers Commissioner or even a Secretary of State before the criminal conduct authorisation can be changed. These are often fast-moving situations, involving complex human interactions that cannot be paused while a decision is made.

It is essential that covert human intelligence sources are not tasked to commit crime in a way that is not legitimate, whether by mistake or corruptly. The draft revised code of practice is not reassuring on this point. For clarity, I will set out what could happen in practice: a handler, who is in in contact with the informant and wants him to participate in crime, makes an application to an authorising officer—in urgent cases, a police inspector or equivalent and, otherwise, a superintendent. Paragraph 5.8 of the draft code of practice says:

“authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible”.

There could be a situation where a drugs squad sergeant investigating a drugs gang gets urgent authority from his own drugs squad inspector to authorise an undercover drugs squad officer to engage in a drug deal in which the sergeant, the undercover officer and, arguably, the authorising officer are all immune from legal action. It is not difficult to see the potential for abuse in such situations. Noble Lords will be able to imagine a similar scenario, where the target of the operation is a legitimate peaceful protest or the proper activities of a trade union.

Amendment 56A in my name and that of my noble friend Lady Hamwee seeks to resolve this conundrum. It seeks to ensure that, if it is intended that an agent or informant is to participate in crime, the

“nature and extent of the deployment have been approved by the Investigatory Powers Commissioner”

in advance, not the precise details of the criminal conduct authorisation. It is pre-approval, if you will: a CCA cannot be granted unless and until the Investigatory Powers Commissioner has agreed to the mission, in general terms, on which the CHIS is about to embark.

The amendment does not require the prior approval of the exact and precise terms of the criminal conduct authorisation. Instead,

“the purpose and extent of the deployment, and … the type of criminal activity”

likely to be involved must be explained, in general terms, to the Investigatory Powers Commissioner, who must approve the use of the agent or informant in the intended way. The Investigatory Powers Commissioner could, for example, approve the deployment of an agent into a terrorist organisation, but would, in all likelihood, refuse the use of a CHIS to spy on the legitimate activities of a trade union.

We suggest that this would provide the reassurance that many noble Lords seek by ensuring that a covert human intelligence source should not participate in crime without prior judicial approval, but without the Investigatory Powers Commissioner becoming involved in trying to understand the personality of the CHIS and those he will interact with, or becoming involved in the exact detail of the criminal conduct authorisation prior to the event. It would give the handler the flexibility he needs, but ensure that the CHIS is deployed only for a legitimate purpose. Such prior approval of deployment would apply only where it is intended that the agent or informant will be authorised to commit crime.

Clearly, there needs to be provision for urgent cases, which the amendment attempts to give, but what constitutes an urgent case also needs to be defined—although there is guidance in the draft code of practice about this. The question of legal immunity needs to be dealt with separately, but I urge the Government to seriously consider this compromise, and I hope that the Minister will undertake to discuss this amendment with me before Report.

As with all activity by the state and its actors, the impact on minorities should be monitored, and we support Amendment 78. However, we feel that it is too early to expect the Government to set out how they will respond to the Undercover Policing Inquiry, as this will depend on its findings.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the noble Lord, Lord Paddick, gave a very graceful explanation of his previous intervention. Perhaps I should do the same and at the same time apologise to civil servants. If we accept what the Minister has said —that such actions as sleeping with campaigners to infiltrate those campaigns was illegal then and is illegal now—that still means that four Met commissioners sat in front of the body holding them to account and refused to commit to that. What does that say about our senior officers? We always have to bear this in mind, and I have been involved in this struggle for the past 20 years.

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[Lord Cormack (Con)]

My Lords, I do not dissent from what the noble Baroness, Lady Hamwee, said, but I shall concentrate my remarks on the amendment in my name, to which the noble Lords, Lord Hain and Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb, have kindly added theirs. Just so that colleagues are precisely aware, my amendment says:

“A criminal conduct authorisation may not authorise … murder, torture or rape, in any circumstances, or … a person under the age of 18 to engage in criminal conduct”.


I tabled this amendment because, during the debate at Second Reading, a number of people expressed very considerable concern about minors, those under the age of 18, being authorised to commit crimes. A number of colleagues including, perhaps most notably, the noble Baroness, Lady Kennedy of The Shaws, talked about Canada and other countries where there is a specific list of crimes that are definitely not in any circumstances able to be authorised. I regard this as a probing amendment, and I intend to return to the subject on Report, if the Government do not give me what I think is a satisfactory response. It is a probing amendment because I think it may be that the approach of the noble Baroness, Lady Hamwee, is the one that the Government prefer. I do not know, but I think these points should and must be addressed.

I make it absolutely plain at the outset that I listened very carefully indeed to what my noble friend Lord King of Bridgwater said in the earlier debate this afternoon. He talked about the important work that these agents perform in the national interest. I do not dissent from that, nor from the very warm words of approval in a notable speech by the noble Baroness, Lady Manningham-Buller, on Second Reading, where she stressed the bravery of agents. However, we are swimming in murky waters here and, as I have said before, it is important that we recognise the implications of this very far-reaching legislation.

I think it is splendid that we have the noble Lord, Lord Paddick—he is briefly away from his seat—bringing his experience of the Met, but I wish that one or two of the former commissioners who sit in your Lordships’ House would give us the benefit of their advice as we move on to Report. We are very privileged in this House to have true experts with enormous collective experience, and it would be good to hear from them on this very important subject.

What I am seeking to do through this amendment is to achieve a balance between the absolute requirements of a civilised society and making that society safe. There are things that one should not do in any circumstances and still claim the rights of a civilised society. Torture, of course, stands out as perhaps the foremost among those, but I think a civilised society also has to be careful about what it allows its young people to do. One of the tragedies of the last 50 years —the time that I have been in Parliament—is that childhood innocence has been, to a large degree, destroyed. The principal culprit in recent years has been social media. That is something, way beyond the scope of the Bill, that the Government have to give further priority to.

If, in dealing with county lines and so on, we are going to authorise young people under the age of 18—indeed, I understand that some of them are under the age of 16—to engage in criminal conduct, that is really not a hallmark of a civilised society. I appreciate the difficulties, and I would like to hear more about them. That is why I said, a moment ago—and I am glad he is back in his place—how much we welcome the presence and participation of the noble Lord, Lord Paddick, and how helpful it would be if some of the former commissioners of the Met who are in your Lordships’ House took part on Report because, clearly, he and they know far more about this than I do. I try to look at this from a civilised perspective, and it troubles me deeply that young people should be authorised to commit crimes, and sometimes very serious crimes indeed.

I hope the Minister, who has been meticulous in seeking to answer the very legitimate points made by colleagues in this debate, will be able to devote some time and attention to this. I would welcome the opportunity of discussing these things with her before Report. We need the Bill; I accept that. Some of those we will be authorising are, indeed, as the noble Baroness, Lady Manningham-Buller, said, among the bravest of the brave, but there are others who have a criminal background themselves and, while I would not necessarily question the validity of their work, I might question the validity of some of their motives.

I think we have to get this, as we are legislating. Up to now, we have not, although we all know it has happened. As this very important, far-reaching Bill is before your Lordships’ House, and as it was not given the scrutiny in another place that we are giving it, I want us to be able to send it back to the other place significantly improved. I hope that, as in so many cases, the Government, recognising the validity of points made in your Lordships’ House, will themselves introduce amendments that we will be able to welcome and endorse, to create a Bill that is truly workable and that achieves that balance I talked of a few moments ago. I hope it goes back to the other place and does not come back to us after that, because I hope the other place will accept the improvements made to it. I commend this, as a probing amendment, to your Lordships’ House.

[Baroness Jones of Moulsecoomb (GP)]

It is a pleasure to follow the noble Lord, Lord Cormack, whose amendment I have signed. It is a very important amendment about putting limits on what can be authorised, excluding rape, torture and murder. Quite honestly, it is astonishing that this even has to be debated; we really ought to be free of that sort of threat to ordinary people, quite often.

The Government say that amendments such as these are not necessary, because of the complex legal web of proportionality and the Human Rights Act. That argument might carry more weight if the Government were not constantly fighting a culture war against human rights lawyers. However, one does not need to be a human rights lawyer to understand that rape, murder and torture are never justified, so these restrictions have to be in the Bill.

Then there is the Government’s circular argument that we must not ban specific crimes from being authorised, because undercover agents would be tested by the criminals to prove themselves by doing prohibited acts. The circularity of that argument is that if the Human Rights Act already prohibits something, they can already be tested. I would like that cleared up if possible.

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[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Lord, Lord Judd.

We will go to the noble Baroness, Lady Jones, and if we can reconnect with the noble Lord, Lord Judd, we will bring him in after the noble Lord, Lord Russell. I call the Baroness, Lady Jones.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is an issue that I have raised several times in your Lordships’ House: the issue of child spies. We even had a debate on it about 15 or 18 months ago in Grand Committee. Everybody I have ever mentioned it to—either out in the wider world or here in your Lordships’ House—is absolutely horrified at the idea that the police or the security services use children as spies. Other noble Lords have mentioned how damaged these children probably are. The fact is that the police find them when they are committing crimes, so they catch them doing something criminal. Anecdotally, I have heard that the children are given the option of being arrested and taken away, or they can go back into the gang. I have absolutely no way of knowing whether this is true, but it sounds like blackmail to me. So in addition to the police not rescuing these children, the children are sent back into danger.

I said in my Second Reading speech that I would stop this process immediately. Luckily, the noble Lord, Lord Young, was faster in putting the amendment down, because his support is obviously going to carry a lot more weight than mine. It struck me at the time, however, that anyone can be horrified by this. You do not have to be a right-on, woke Greenie. It is horrifying to all of us.

I have put down an amendment about vulnerable people, which I consider children to be as well, and it covers anyone who is a victim of modern slavery. Quite honestly, we have heard from the Government that this whole Bill is all about protecting the country and the people of Britain; but it is not protecting some people. Some people are not getting the protection that the Government are offering to others. If we are not protecting vulnerable people or children, what do we think we are protecting: a way of life that we can be proud of? I really do not think so.

Personally, it is unforgivable seeing these children used as pawns and spies to somehow find out what we think might be useful information about criminal gangs. It is worse than state-sanctioned child abuse: it is state-sponsored child abuse, and the Government should be thoroughly ashamed of trying to put this into legislation. I would like to see the Government more inclined to taking these children out of criminality and actually saving them from the sort of life that they have been leading, rather than pushing them back into greater danger and possibly greater criminality.

I have met police whistleblowers: I think they are astonishing, because they go against their group and their friends; it is incredibly difficult. Two of the whistleblowers I have met suffer from PTSD. The PTSD is not from confessing what they did but from the work they did when they were undercover, because being undercover is highly stressful. The “undercover” I mean is not necessarily to do with drug gangs or terrorist organisations; quite often, when it comes to political groups or campaigns or NGOs, officers are sent in for years. We have heard about relationships lasting seven years, children being fathered and that sort of thing. When you are undercover that long, you do suffer trauma. It is extremely difficult to come out of that and feel normal again, because you have hidden so much of yourself and so much of your life from other people.

One of the whistleblowers I am talking about is absolutely divorced from reality; he finds it extremely difficult to feel any emotion. He told me when his father died, he could not cry, and he still has not been able to cry, some years later, because of the trauma he suffered as an undercover police officer. The other one, who I know quite well, told me he has the opposite problem: he is extremely emotional and cries very easily at all sorts of things because of the trauma he suffered as an undercover police officer. Can anyone please tell me that children are less vulnerable to that sort of trauma than adults? Of course not; children are more susceptible to that sort of trauma. I do not care how many children it is; one is too many. Those children will suffer, possibly for the rest of lives. We as a nation really should not be causing that.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Baroness, Lady Young of Hornsey.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, in speaking to Amendment 77, I should first declare that my daughter wrote on this subject in a book on powers of investigation and human rights. I should also add that the noble Lord, Lord Marlesford, very much regrets that he is unable to speak to this amendment, which he warmly supports.

I do not have much to add to the expert introduction of my noble friend Lady Clark of Kilwinning. I simply emphasise, as a former member of the NUJ, that this amendment bears particularly on investigative journalism and the exposure of illegal, exploitative or anti-social activity: writing that could arguably impact on economic well-being or disorder and which we need to protect, in the public interest, as a keystone of democracy. The confidentiality of journalists’ sources is protected by Article 10 of the ECHR’s guarantee of freedom of expression, as my noble friend Lady Clark said. Further, any statutory provision allowing the circumvention of the existing legal protection of journalists’ sources is also dangerous because it will deter those sources from coming forward.

The Secretary of State for Justice, when Solicitor-General, said that the ability of sources to provide anonymous information to journalists needed to be protected and preserved. This will not happen if those sources are at the mercy of the wide range of covert intelligence agents that the Bill would casually authorise with no judicial oversight.

As my noble friend Lady Clark said, the Investigatory Powers Act requires prior judicial authorisation as essential when any application is made to identify confidential journalistic sources. When he was a Home Office Minister, Nick Hurd MP confirmed that these protections were necessary to comply with the Government’s obligations under Article 10, that the police require a production order from a circuit judge, under the Police and Criminal Evidence Act, and that they must, in addition, satisfy the conditions of confidentiality. We should not dilute this kind of obligation. I hope that the current provisions are not yet another attempt by this Government to muzzle, challenge and undermine one of the democratic pillars of freedom.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Whitaker. I agree with everything she said. I also have a daughter who is a journalist so, for me, this is quite personal. I also care very much about the truth, and journalists are often the people who give us the truth in any particular situation.

I have signed Amendment 77, and I thank the noble Baroness, Lady Clark of Kilwinning, for it. It is slightly awkwardly included in this group, but it addresses the specific issue of protecting journalism and journalistic sources. We need that in the Bill. We have put it into other Bills, such as counterintelligence or counterterrorism Bills, and it would easily go into this one as well. It would make sure that we have a clear commitment to journalism. I realise that this is not particularly comfortable for this Government, which have criticised a lot of lefty journalists—as well as lawyers—but it is incredibly important.

This group generally shows broad support across your Lordships’ House for the principle that judicial authorisation must be built into the Bill. It must not be arbitrary or a rubber-stamping exercise; it has to be the real stuff. In many ways, comparing it with search warrants issued by a magistrates’ court is much too weak a comparison. High-level crimes can be authorised in the Bill, with deep and lasting consequences. There must be high-tier judicial oversight and approval to match.

The question is whether we can build consensus around a way forward. Amendment 61 in the name of the noble Baroness, Lady Kennedy of The Shaws, is perhaps the easiest solution to this problem. It sets up the judicial commissioner as the proper overseer and sets out the legal test that must be met to grant an authorisation. In particular, it tests the reasonableness of granting authorisation and explicitly protects against breaches of human rights, which we will come to later. Overall, the Government are being offered a selection of solutions to a problem. I hope that they take one of them.

[Baroness McIntosh of Pickering (Con)]

I will speak to Amendments 12 and 61 in my name and that of the noble Baroness, Lady Kennedy of The Shaws. I am grateful to the Law Society of Scotland for its briefing. I am not particularly well qualified to speak on these issues, as many who have already spoken have direct experience in this regard, but I believe in due process and natural justice. I am concerned that we are reversing activity that was criminal and making it legal.

As the Law Society of Scotland has pointed out, scrutiny of the exercise of these powers lies with the Investigatory Powers Commissioner, who is required to produce an annual report. However, this is scrutiny after the event. It will be limited and may not provide us in Parliament with the robustness that the exercise of these powers commands. Therefore, given the nature of the policy, there should be checks and balances to ensure the effective operation of these organisations to ensure that there is public confidence in the use of these powers by providing limits on their use and adequate scrutiny.

I am attracted to Amendments 12 and 61, which the noble Baroness, Lady Jones of Moulsecoomb, referred to, as well as to Amendments 46 and 73 in the name of the noble Lord, Lord Anderson of Ipswich, which have many elements that commend themselves. Amendments 12 and 61 ensure that criminal conduct authorisations receive prior approval from a judicial commissioner. In the debate last week—which seems a long time ago— there was a great coalition of views around whether approval should be given by a judge, a judicial commissioner or a member of the Investigatory Powers Commissioner’s Office. I would be guided by those with much greater experience than I have in that regard.

However, it is important for there to be greater scrutiny before criminal conduct authorisation is granted, rather than after the event. In terms of due process, it should not be for the organisations, in the words of the noble Baroness, Lady Kennedy of the Shaws, to mark their own homework. The issue should not be simply for a senior official in the departments—I am particularly concerned about the Food Standards Agency and the Environment Agency—and we will come on to explore those in greater detail. In the words of the Law Society of Scotland,

“The Bill authorises persons within the relevant organisations to act with impunity where authorised by indicating that the criminal law will not apply to them in undertaking acts which would otherwise result in prosecution and conviction. In most circumstances, what will happen is that justification of the criminal conduct will be sought after the event”.


I put it to the House this afternoon that that is unacceptable, and authorisation should be granted—preferably judicial authorisation, in the best format possible—before the act that would otherwise deemed to be criminal actually takes place.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson. I do not have their legal expertise but even I, a civilian, can understand that the legal tests in this Bill are absolutely inadequate.

I had the pleasure of being on the Metropolitan Police Authority for 12 years when I was a member of the London Assembly. In that time, I met a large number of police officers—some of whom spied on me—so I can understand the sort of people who become police officers. They are incredibly hard-working and very brave, but they are human and make mistakes. They certainly made a mistake when they decided to report on my activities, which were all on Twitter—my own Twitter. In any case, I have no experience of the security services—that I know of—yet but I imagine that they, too, are human. We are all prone to error.

The big problem with this Bill is that the legal tests are too wishy-washy. They give the authorising bodies free rein. If we do not contract those processes in some way, there will be mistakes—there are bound to be. It will become very difficult to challenge even the most obviously wrong authorisations. The crimes will have been committed, the damage will have been done and harm will have been caused—possibly to entirely innocent people, as has happened in the past. The reasonableness test should be included in the Bill; the Government will struggle to argue against that.

We should, however, go beyond reasonableness. That is why I have signed Amendment 19 in the name of the noble Lord, Lord Rosser. The decision-maker should consider, and show evidence, that they have thought about the alternatives to authorising criminal conduct. Where criminality can be avoided, it should be. I took the point that the noble Lord, Lord Paddick, made about the fact that, as an inspector aged 24, he was not what I would consider a necessarily appropriate person to authorise immunity from criminal conduct. I am sure that the noble Lord was an incredibly competent police officer but, even so, that is an incredibly young age to understand the impact of what you are doing.

The decision-maker should also demonstrate that they are not using this legislation to bypass other, more appropriate, legal routes to achieving their objectives. They should not be able to authorise criminal conduct where a legal route exists. For example, the legislation must not create loopholes and back doors for the authorities to conduct black ops. They must not be able to recruit a burglar where they should have used a search warrant, or a hacker where they should have obtained a RIPA authorisation. It is not sufficient for such critical issues to be left to the code of practice. It must go in the Bill. I really hope that the Government listen to the noble Lords who understand these processes and accept that we are all human and make mistakes.

--- Later in debate ---

Moved by

[Baroness Jones of Moulsecoomb]

19A: Clause 1, page 2, leave out lines 22 and 23

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have written a very long speech, so I hope I will not hold people up for too long.

There are a lot of things in this Bill that I absolutely loathe. In fact, I probably loathe it in its entirety and I wish the Government had never brought it forward. However, my Amendment 19A is about changing the rules for criminal conduct authorisation by statutory instruments. What we have seen again and again with this Government is little power grabs—little bits of erosion of our democracy—through various statutory instruments that they have consistently brought over the past few months. Their majority of 80-plus in the Commons has simply gone to their heads and they feel that they can run the country without your Lordships’ House, which is absolutely ridiculous.

It is a pleasure to introduce the amendments in this group, and I look forward to all the important points that other noble Lords are going to put. The amendment is quite simple—just that the Government should not be able to change the rules without proper parliamentary scrutiny; and let us face it, statutory instruments are not proper scrutiny. We are talking here about the state being able to authorise people, quite possibly criminals, to commit crimes. Even I will accept that that sometimes has legitimate applications, such as taking down terrorist cells or breaking up organised crime. But let us face it, that will not be all that this is about. It creates a set of extreme ethical, moral and legal dilemmas, so much so that it must be Parliament—not the Government, whom I do not trust anyway—that makes the decisions on when and why this is allowed.

I think that proposed new clause 29B(4)(c) in Clause 1(5) is a tacit admission by the Government that there are insufficient safeguards built into the Bill and that they want to backfill that with secondary legislation and a code of practice. That just is not good enough for something of this magnitude. I want a clear confirmation from the Minister that that is not what is intended and that the Government will in some way accept that and make it clear.

When speaking to an earlier group of amendments, the Minister talked about not dwelling on the failures of the past. That is all well and good, but if you do not dwell a little on the failures of the past you are doomed to repeat them. That is exactly what I have been saying all through our consideration. We have seen repetitions of failures and somehow the police, the Government and the security services do not learn fast enough. I am hoping for a very positive response from the Minister, please. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I understand that the noble Baroness, Lady McIntosh, has withdrawn, so I now call the noble Lord, Lord Naseby.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, turning first to the order-making powers, addressed first by the noble Baroness, Lady Jones of Moulsecoomb, the ability of Parliament to scrutinise statutory instruments is a broader topic than this debate permits me to go into. As to the order-making powers in this Bill, these powers allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited. I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards. I particularly seek to assure the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Rosser, on that point. The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they be contained in secondary legislation.

The noble Baroness, Lady Hamwee, asked whether there was a precedent for such powers to be subject to the negative procedure. The equivalent powers in Section 29 of RIPA are both subject to the negative procedure. Taking similar powers in respect of criminal conduct authorisations to those already contained in Section 29 will allow the Secretary of State to make equivalent provision for Section 29 authorisations and criminal conduct authorisations, where appropriate, so that similar arrangements are in place for both. There is a high degree of interrelationship between the two provisions. While the Government do not have any particular safeguards or limits in mind, such requirements may arise in the future that will need to be legislated for.

An example of the past use of the Section 29 powers is the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010, which imposes specific additional requirements that must be met regarding the authorisation of a CHIS in connection with material subject to legal professional privilege. Were any changes proposed in the future, the relevant persons would of course be consulted prior to those changes being made. Amendments 21 and 58 are therefore not considered necessary.

Turning to Amendment 81, the Bill contains provision to commence the Act for different areas on different days, to allow time to make any necessary secondary legislation, issue guidance, undertake appropriate training and put the necessary systems and procedures in place, as appropriate. I assure the Committee that this power will not be used to delay commencing those sections relating to safeguards. The power could not lawfully be used to frustrate the will of Parliament in this way.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I thank all noble Lords who have contributed to this debate, even those who did not agree with me. It was lovely and very heart-warming to hear the noble Lord, Lord Naseby, agree with a Lib Dem Peer, the noble Lord, Lord Paddick. I thank the noble Baroness, Lady Chakrabarti, for her support, and the noble Baroness, Lady Hamwee, for her sympathy and exposition of the whole group, which I perhaps should have done myself. I felt that the noble Lord, Lord Rosser, made an extremely good point in asking why there should not be greater detail in the Bill now.

The Minister made a very nice and emollient response, but there is always the problem, not in distrusting the Ministers we have here, in your Lordships’ House—we trust them to have good will and be ethical—but in distrusting the Government, as many of us do. I imagine that possibly a majority in the country distrust the Government at the moment. So I do not feel completely reassured, and will think about bringing this back on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 19A withdrawn.

Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020

Baroness Jones of Moulsecoomb Excerpts

Thursday 26th November 2020 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Mackay of Clashfern, but I disagree quite strongly with him. We have had a lot of these statutory instruments coming through, some of them excruciatingly boring, and we use them as an opportunity to talk about much wider issues. Some are actually quite dangerous and some—this is one—are really quite messy. The Explanatory Memorandum admits as much. The statutory instrument jumps around dozens of different areas of law enforcement co-operation with the EU and makes little tweaks here and there to try to fix deficiencies for when we finally leave the EU. I accept that we need this sort of statutory instrument but, quite honestly, I do not see the clarity here.

One thing we saw throughout the last few months of the pandemic was the confusion, particularly for the police, over the advice from the Prime Minister and the later comments and suggestions from Ministers interpreting it, versus the rules and the actual law. There was a lot of confusion and the police overstepped the mark quite a lot. I basically feel, although I do not have much confidence in our law enforcement agencies, that they were not to blame—it was actually the Government. They presented so many confusing scenarios that the police did not really have much chance to enforce the law. What will the Government do to make sure that this is a clear law, properly understood by the police and security services, so that we do not see the abuses we have seen over the past nine or 10 months? What plans do the Government have to bring consolidating legislation—to put it all in one place and reduce the chaos? It simply is not fair on the police that the Government throw out this stuff and do not give them the time, as the noble Lord, Lord Reid, suggested, or the clarity to be sure that they are not breaking the law when they try to apply this.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Goudie, has withdrawn, so I call the noble Baroness, Lady Ritchie of Downpatrick.

Hate Crime: Misogyny

Baroness Jones of Moulsecoomb Excerpts

Monday 23rd November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I do not know what those recommendations are yet but I can say to the noble Baroness that the Law Commission’s review will include how protected characteristics—including sex, gender and age—should be considered by new or existing hate crime law, as well as how legislation protects the existing protected characteristics.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, one of the problems in making sure that killers and abusers of women are prosecuted is the fact that the police often—that is, in the past and still now—do not take women seriously. Misogyny is clearly a problem in police forces. What is the Home Office doing about it?

[Baroness Williams of Trafford (Con)]

The noble Baroness asks about domestic abuse, primarily, and misogynistically motivated crimes against women. In recent years, training for front-line police responders has been improved significantly, so what might have been seen as a domestic 20 years ago is now taken extremely seriously and the appropriate action is taken.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I welcome the three new Peers and congratulate them on their maiden speeches. I look forward to meeting them in future, perhaps bumping into them in corridors some time and setting them straight on a few of the issues in this Bill. The Bill is about granting immunity for crimes to criminals whom the Government employ. I will raise five issues today, though I am sure there will be more in future.

I start by highlighting that many victims of undercover policing are currently, finally, giving evidence to the Undercover Policing Inquiry, which is exploring systematic abuses by undercover policing units over a period of 40 years. It is therefore regrettable that the Government are bringing this piece of legislation forward before any lessons have been learned. More can be learned from the public inquiry, so will the Minister undertake to bring forward further legislation in future to deal with any recommendations coming out of it?

Secondly, I want to dispel any notion that this legislation is simply regularising and codifying the status quo. This is simply not true. Most significantly, there is currently no blanket immunity granted to undercover state operatives. There are legal defences which can be relied on, and prosecutors can and do decide that it is not in the public interest to prosecute undercover operatives. However, this legislation seeks to replace that with a blanket system of legal immunity which would be self-administered by the agencies themselves. This undermines victims’ rights and gives them no legal redress when they are harmed by undercover operatives.

Thirdly, there are no limits in the Bill to the criminality that can be authorised. The Government’s response is that the Human Rights Act would prevent these types of crime; even if that is true, it remains this Government’s stated intention to repeal the Human Rights Act. Can the Minister make very clear what the Government’s proposals to change the Human Rights Act are and how they will interact with the Bill? The Bill allows the Secretary of State to place limits, by regulation, on what conduct can be authorised, so the Government have already explicitly conceded in the drafting of this legislation that there is a need for restrictions on what can be authorised. The Joint Committee on Human Rights said it best in paragraph 42 of its report on this Bill:

“The Government should not introduce unclear and ambiguous laws that would, on their face, purport to authorise state-sanctioned criminality that would lead to serious human rights violations such as murder, sexual offences and serious bodily harm.”


Noble Lords can see that we have a problem here.

One does not have to be a human rights lawyer to realise that the Government are not allowed to authorise people to commit such grievous crimes. Parliament should place limits on the face of the Bill. In particular, we must prohibit the use of government agents as agents provocateurs who infiltrate legitimate political campaigns or trade union groups and disrupt their activities or cause them to commit criminal acts.

Fourthly, on the issue of child spies, which I have spoken on many times, I think it is dangerous, unethical and cruel, and I would prohibit it.

Fifthly, I am very concerned about the overlaps of this Bill with already existing legal processes: for example, the risk that authorisation under this Bill could bypass some of the legal safeguards, like search warrants or phone-tapping authorisation, or authorise conduct that interferes with legal processes, such as tampering with evidence, contempt of court or perjury, which could all be argued to be necessary and proportionate.

I look forward to working with other noble Lords across the House to significantly amend this legislation. I believe that if we cannot amend it significantly, then it must be voted against in its entirety.

Covid-19: Christmas Breaches of Restrictions

Baroness Jones of Moulsecoomb Excerpts

Tuesday 3rd November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I bet everyone would love to know the answer to the noble Lord’s final question. The Government have to keep an open view on what the numbers are looking like and the trajectory of the number of illnesses and deaths, so it is very difficult to put a date on that. However, going back to a previous question, how we behave as individuals between now and the beginning of December—2 December being the next point at which the Prime Minister has said he will review this—will be critical to how the numbers look as we approach Christmas.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, at the start of the pandemic the Government kept changing their mind and consequently the police kept getting the law wrong. For example, the CPS reviewed some cases charged and brought by the police and found them to be 100% wrong. Will the Minister guarantee that all police forces will have the right rulebook for this lockdown, or Christmas, or whenever, so that innocent people are not arrested for doing innocent things?

[Baroness Williams of Trafford (Con)]

To be absolutely fair to the police, at the beginning of lockdown in March there were a few examples of the police perhaps acting a little overjudiciously, but since then I have full praise for how they have dealt with the various changes in enforcement rules. The four-point process of engage, explain, encourage and enforce only as the final point has stood them and British society in good stead over the past few months.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I very strongly support this amendment and congratulate the noble Lord, Lord Dubs, on putting it forward in the first place. His personal experience of being part of Kindertransport in 1939 adds real texture to the amendment and makes it perhaps very personal. He is somebody who understands what it is like for these children. He came over legally, but many of these children are coming over illegally. However, the amendment is about family unity. Who can say that family unity is not a good idea? I would have thought it would be a central tenet of any Tory party manifesto, so I am staggered that there is any suggestion that this might not be a good thing.

The Government have recently made some fascinating announcements on asylum. New legal routes will be created; that is interesting. There will be more detention. As has already been pointed out, detention costs a lot of money and is very damaging to the mental health of people who are detained, so all in all more detention might not be the best thing. Our Home Secretary seems to mix up asylum seekers and foreign criminals. I have no idea why she experiences that sort of confusion, but it might be because the Government want us to fear asylum seekers and refugees. They are possibly creating this out of nowhere.

I am curious about how the Government can make announcements of this kind, without anything of substance in them. Lawyers, QCs and judges have looked at them and cannot find much of value, so why bother making such ridiculous statements? This is a question I would like the Minister to answer: are the Government and the Home Secretary completely out of ideas? In which case, accepting this amendment would be a very good idea, because it would ensure some stability in our asylum system and, I hope, would do less damage and make our country less inhumane and more welcoming.

[The Earl of Dundee (Con) [V]]

My Lords, I declare an interest as chairman of the Parliamentary Assembly of the Council of Europe’s Sub-Committee on Refugee and Migrant Children and Young People.

In Committee, my noble friend Minister explained how, early in the pandemic crisis, following talks between her colleague Minister Philp and Greece, three flights of children arrived in the United Kingdom from the Greek islands. All of us will be very grateful to the Government for this. She also referred to the United Kingdom’s humanitarian record in helping vulnerable people, including children.

The amendment of the noble Lord, Lord Dubs, does not so much cast doubt on that or on our future good intentions; instead, and in view of Brexit, its new clause seeks the continuation of rights to family reunion under United Kingdom law, currently secured by the Dublin III treaty yet not necessarily guaranteed after the transition period. Equally, and for the same reason, it aims to ensure that unaccompanied child refugees in Europe will have a legal route to safety in the United Kingdom.

In Committee, my noble friend the Minister gave a number of reassurances. One is the Government’s present endeavour to pursue new reciprocal arrangements with the European Union for the family reunion of unaccompanied asylum-seeking children. Can she say what has been achieved so far and whether that level of progress may now stand to be advanced by the European Union’s paper last week on asylum?

Then there is the role of our local authorities. My noble friend has pointed out that 5,000 unaccompanied children are in local authority care. There may well be councils that would take more, as the noble Lord, Lord Dubs, asserts. My noble friend has commented that, if that is the case, she would like to hear from them, also taking into account the extent to which Kent has to bear the brunt. Does she concur that an approach that is proactive without being coercive might work best? Therefore, should the Government perhaps be more in touch with local authorities to develop co-ordinated plans?

On the protection of vulnerable persons, my noble friend mentioned that current initiatives will be consolidated into a new global United Kingdom resettlement scheme. In outline, can she give us the aims and targets of this new scheme?

In promoting good practice, it goes without saying that internationally the United Kingdom ought to strive to take a lead. Post Brexit, let alone globally, does my noble friend consider that not least should the United Kingdom’s humanitarian standards be well demonstrated in Europe itself within the 47-state affiliation of the Council of Europe, where the United Kingdom remains a much-respected and prominent member?

--- Later in debate ---

She also said having a passport is much better, although there is a cost, because visitors can use e-gates and the documents are less subject to fraud—and we all know that there is an issue with ID card fraud. The Minister also cited a Council of Europe arrangement for a collective passport for organised groups, and I wonder whether this could not be promoted more widely and could help find a solution to the problem that has been raised by the noble Baronesses. I look forward to my noble friend’s comments.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, the three previous speakers, particularly the noble Baroness, Lady Prashar, set out the situation extremely well and comprehensively, but I would like to add a few words.

This is a narrow, specific amendment targeted at young people who probably do not yet have their own passport. It seems that if we allow them to continue using their ID card, they will be less disinclined to come to Britain, and we all know that when young people come to another country, their views are formed, probably permanently, about that country, and if they have a good time, they will always come back and spend money and help our economy.

It is also a fact that these children do not pose a threat to national security; it is not as if they are going to be dangerous once they are here. These are people we very much want to come, and it seems illogical not to allow them to travel on ID cards. I want to ask the Minister a few questions about this. Group passports could actually be less secure and might be more difficult to obtain and, therefore, another deterrent to people coming here. Other noble Baronesses pointed out that this is an economic issue; they spend quite a lot of money and support a lot of the local economy.

What thoughts has the Minister had about planning for facilitating young people to come to visit from the EU? There has to be an incentive; if it becomes more difficult, we have to put something in its place, another incentive. Secondly, what will be the regime for young people going from the UK to the EU? How will that differ from the present arrangements? And, thirdly, this seems utterly unfair, when so many of your Lordships have benefited from travelling abroad so freely, as I have. It truly does broaden the mind, and it is a pity to not offer young people the same opportunities we had when we were young.

--- Later in debate ---

[Baroness Bull (CB)]

My Lords, it is a privilege to speak in support of these amendments, so ably introduced by the noble Baroness, Lady Hamwee, and so well supported, not only across all parts of this House and the other place, but by legal and medical experts, civil society organisations and religious leaders, and by the Home Affairs Select Committee and the Joint Committee on Human Rights.

These amendments respond to the moral imperative to treat people fairly according to principles of non-discrimination. Having a system that departs from the principles of the UK’s criminal justice system, in which judicial oversight is required after days and individuals are released from detention after 96 hours without charge, is antithetical to the principle of the Universal Declaration of Human Rights that:

“All are equal before the law and are entitled without any discrimination to equal protection of the law.”


Setting no time limit on immigration detention impacts on some of the weakest members of society, who already have fewer rights and have likely been under extraordinary physical, mental and economic duress. It effectively pushes people into limbo, taking away their agency and capacity to ensure the well-being of themselves and the people they love.

The negative impact of immigration detention on mental health is well documented in research, with the duration of detention associated with severity of symptoms. A systematic review of the literature found that asylum seekers are likely to have a pre-existing vulnerability to mental health problems, which will be further exacerbated by detention.

As we have heard, the Minister said in Committee that setting a detention time would “encourage and reward abuse” of the immigration system. This proposition tears at the presumption of innocence, replacing it with suspicion and an assumption of guilt. It risks lawmaking being in the service of punishing the many for the crimes of the few. We are not talking here about offenders who should rightly be dealt with by the criminal justice system; we are talking about people who have suffered unimaginable hardships and have come to the UK to escape violence and persecution, in the hope of a better life. Detaining them with no prospect of when they might be released is not the behaviour of a democracy. We are better than this, and it is surely not how we want British citizens to be treated elsewhere.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Bull, who spoke very eloquently. The noble Baroness, Lady Hamwee, was also very eloquent, in spite of her brevity. This Government are famous for their hostile environment. This is really the most inhumane immigration system, and Britain deserves better. We do not even have parliamentary oversight of this system, which is an appalling lack of democracy. I have signed three amendments in this group, all of which are valid and should be taken seriously by the Government and put into the Bill. Amendment 20 is particularly valuable, and my noble friend Lady Bennett and I will be voting for it.

Moving on from the concept of parliamentary oversight, we need a few things in the Bill. We need time limits on detention and a test of necessity and proportionality. People should be detained only when necessary. As we have clearly heard, detention is often unnecessary. We need a right to bail, with a process in place to facilitate it, and a ban on solitary confinement unless absolutely necessary—and I do mean absolutely necessary. These measures should be applied to all immigration detention, and I call on the Government to bring a Bill to reform the whole system. They have already said that they will do that, but I think the reform I have in mind is not what the Government have in mind. I just repeat that the system we have is inhumane; we need one we can feel proud of.

[Lord Ramsbotham (CB) [V]]

My Lords, I shall speak to Amendment 23, which I described in Committee, and in support of Amendment 20—so ably moved by the noble Baroness, Lady Hamwee—and Amendments 21, 22 and 31. When I was Chief Inspector of Prisons, with responsibility for inspecting what were then called immigration detention centres, because the Prison Service at that time was still part of the Home Office, I found that the majority of the management of the immigration system came from there. Most worrying was that there appeared no difference between immigration centre and prison rules, which my inspectorate corrected by rewriting them to better reflect UN and European immigration rules.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

[Lord Naseby (Con)]

My Lords, I speak as someone who served on the Public Accounts Committee for 12 years in another place. The first thing that comes to mind is that the National Audit Office is principally in charge of the investigations there, sometimes prompted by the committee and sometimes by issues that are at the forefront of politicians’ and other parties’ interests. Those reports are always produced when there is a case to be looked at. The reports are taken very seriously and are of great substance. I was particularly pleased—this is the reason I am taking part in the debate on this amendment— to see that there was this PAC report on a subject that is likely to come before your Lordships’ House. That report gives cause for considerable concern—that is probably a huge understatement. I hope my noble friend on the Front Bench, for whom I have a great deal of time, and those who are advising her will look at this very seriously. I think they need to go back also to the National Audit Office and look at some of the data, because it cannot all be reproduced in a report.

A couple of other issues come to my mind. My noble friend mentioned the 5,000 boat people. I sat on the Council of Europe for eight years—it is not just a talking shop; it does some valuable work. This is the sort of issue where two countries are involved in something that is not acceptable to either country but nobody has managed to bang the heads of the head of states together to ensure that a solution is found.

I am a great lover of France; for years, I had a mobile home in the south of France and I love going there. But this is not in the interests of France; I know our Prime Minister is pretty busy, but it is time for someone in a very senior position to talk to the Prime Minister of France, so that we can stop these huge numbers. Maybe we will have to take a share of the very small proportion who are genuine asylum seekers but, for the rest, an answer has to be found.

As the House knows, I also specialise in south Asia. I lived and worked there for a number of years and—dare I mention?—I have written a book about Sri Lanka. There is a problem about asylum seeking from not only Sri Lanka but other parts of south Asia. Self-harming is not something that many people in the Chamber or elsewhere know too much about, but it is not as unusual in south Asia and south-east Asia as it would be in the western world. Self-harming is then transcribed into “torture”, so when the individual presents themselves as an asylum seeker here, with an analysis from a UK doctor who of course has no idea about self-harming, it is pretty strong evidence that there has been torture—but there has not; there has been self-harming. That is something people should be particularly alert about.

We are being prompted daily to have an app on this and an app on that—track and trace is now the issue of the day. I do not know whether this happens, but it occurs to me that, given that the one piece of luggage that most migrants have with them is a mobile phone—or someone within their group has a mobile phone—those going into the reception area should have a track and trace system of their whereabouts, for a limited period, on some sort of app.

I listened to the noble Lord, Lord Paddick, with particular interest. He has put some genuine questions that I hope my noble friend on the Front Bench will take away, if she is not able to answer them today. There is clearly something not right in the areas that he has picked up.

I spent a great many hours recently on the Agriculture Bill, which has a section dealing with temporary agricultural workers. It is a fact that, in the UK at this point in time, there is not enough part-time or spare labour and ability in agricultural matters to bring in the harvest, particularly in Lincolnshire and the surrounding counties. I come from Bedfordshire; we are on the fringe, but there is a great deal of horticulture. We must not have another harvest next spring where we in the UK are short of people to harvest the crops. I just want to put that on the record.

Finally, as some will know, I am a former RAF pilot and still take a great interest in aviation. I unearthed, some years ago now, a manoeuvre that was being done with light aircraft out of small airports; they were basically flying out of the UK and, on the flight plan, there was no requirement to record who the people on the aircraft really were. Even where the people were recorded, there was no checking done on the way back as to whether the number who went out came back, whether they were the same people, or even whether they went back to the original airport they had started from. I still believe that that is a problem and should be looked at.

This is an important amendment. I am sorry to get a little technical, but the amendment says, “within six months”. Having sat in the Chair down the other end, I would have to say that “within six months” suggests less than six months, and what I think my noble friend will be pushing for is that it should be done at six months or immediately after six months. If I am right, I hope that the Minister can ensure that that minor change can be implemented. I wish my noble friend all success with this very important amendment.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I confess to being slightly surprised by some of the comments in favour of Amendment 1; I am speaking against Amendment 1 and very strongly in support of Amendment 2 in the name of my noble friend Lady Bennett.

This is no time to be xenophobic and exclusionary. To suggest that the majority of migrants come over here on the basis of greed is to ignore the fact that the vast majority come over here to find a place of safety, not just for themselves but for their children. They come over here because they are absolutely desperate. Who would face that sort of crossing in a rickety boat if they did not have to? It is worth reminding your Lordships’ House that some of the forebears of your Lordships benefited, as refugees, from the welcome that Britain extended to them.

When we look at these migrants, we have to accept that we bear some of the blame for their situation. It is not as simple as saying that it all happens abroad and we bear no responsibility. We sell arms to repressive regimes and we have to understand that that has consequences. We also use far more of our share of the earth’s resources, which means that other places have less than their share, which creates environmental refugees. We also meddle in other people’s wars. We do not have to go to war in far-flung places—we should be making sure that the world is a more secure place.

I benefited hugely from freedom of movement when I was young, and I would like my children to do the same, as well as the thousands of other young people who are reaching the age when they want to travel, visit other places and learn about other cultures. It is unfair that we ban this opportunity for young people, when we had it ourselves.

Finally on Amendment 1, as I have said and will never tire of repeating in your Lordships’ House, ending freedom of movement is not the will of the people. You cannot assume that, because people voted for Brexit, they voted to end the freedom of movement. I and many others from the left voted for Brexit, but we did not vote to finish off freedom of movement. So, please, no more stuff about it being the will of the people; it absolutely is not.

On Amendment 2, we should see this as an opportunity to show the Government and the people of Britain that ending freedom of movement is not desirable but something extremely undesirable. I, for one, will be voting for the amendment.

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[Lord Rosser (Lab)]

Amendment 3 is similar to that moved by my noble friend Lord Hunt of Kings Heath in Committee. It would require the Secretary of State to commission and publish an independent assessment on the impact of ending free movement on the social care sector, including the impact on the workforce—such as skills shortages—visa options for social care workers, and long-term consequences for recruitment, training and staff terms and conditions. The independent assessment must be published within six months of the Bill being passed and laid before both Houses of Parliament within 14 days of its publishing date.

In Committee, there was little disagreement over the current state of the social care sector: low-paid, undervalued and skilled work; a very high staff turnover rate of over 30%; well over 100,000 vacancies; and some 20% of the workforce being from other countries, including the EU, with that source of staff about to be closed down in three months’ time as a result of the advent of the points-based immigration system and the overwhelming majority of care staff not being eligible for the health and social care visa. There was, I think, a large measure of agreement too that the sector needed to place greater emphasis on training and increased professionalism, and that not everyone in the labour market would have the necessary aptitude and attitude to meet successfully the demands and requirements of care work.

The Government rejected the very similar amendment moved by my noble friend Lord Hunt of Kings Heath, not on the basis that an inquiry into the social care sector was not needed but on the basis that a mechanism already existed that kept the social care sector under review. The Government, through the Minister, said:

“I very much agree that it is essential that policies are kept under review, particularly when the Government are introducing a new, points-based immigration system from January. Independent scrutiny and review are a good thing, but I am not sure that we need to legislate to provide a whole new mechanism.”—[Official Report, 7/9/20; col. 608.]


The Minister then went on to say that the Migration Advisory Committee had been in existence for some years, and that noble Lords should be in no doubt about the close interest that it took in the health and social care sector. It is true that the MAC reports on the social care sector. Indeed, in a wide-ranging—I think 650-page—report yesterday on the shortage occupation list, covering numerous sectors, it again expressed concern about the social care sector and argued that if the necessary domestic funding increase and pay increases it has been calling for, in its own words, “for some years” did not now materialise in a timely manner, it

“would expect the end of freedom of movement to increase the pressure on the social care sector, something that would be particularly difficult to understand at a time when so many care occupations are central to the Covid-19 pandemic frontline response.”

The MAC also said that a potential rise in labour supply to the care sector as a result of UK job losses elsewhere cannot be “predicted with any certainty”. This Bill makes an immense change to our immigration system, which will have a significant effect on our already understaffed and underresourced social care sector at the same time as we are going through a global pandemic. Our care sector has always been vital; now it is part of our front line. We need more than the regular reporting mechanisms. This amendment would provide for that much-needed specialist, timely and targeted review of social care—of workforce numbers, the impact of the Government’s decision not to include many care workers in the health and care visa, and what this all means for future planning for the sector at this crucial time, including terms and conditions and training for a talented, caring workforce.

The Government have already made the decision to change the immigration system and have said that they want to see competitive terms and conditions in the sector and not have people on the minimum wage. The Government have also said they want the right number of people to meet increasing demands with the right skills, knowledge and behaviours to deliver quality compassionate care. Those are very commendable objectives, and a recognition from the Government that they are, as my noble friend Lord Hunt of Kings Heath said in Committee, the main funder and regulator and set the whole context in which the sector operates.

With the Government having decided that this low-paid, undervalued but skilled sector, with its enormous turnover of staff and vacancies running well into six figures, is now to face, on top of that, a significant source of labour being closed down in just three months’ time, social care faces a potential perfect storm. With social care facing such an unprecedented situation, now is the time for a fresh set of eyes to make an expert assessment of the impact of the end of free movement on a sector that already has existing significant problems of pay, conditions, turnover and training that need to be addressed if ever-increasing demands for social care are to be met. We need an assessment that has a major input from people who have expertise in, and specialist knowledge of, the field of social care, and can bring a fresh perspective to bear on a sector whose existing, as well as pending, problems will have to be addressed if the Government’s goals of a better paid, more highly trained and professional workforce with much lower turnover rates than at present is to be achieved.

The amendment does not ask for too much; it does not pre-emptively write the Government’s policy for them but merely asks for a timely, thorough and independent analysis of how to support our care sector and its staff and enable it to achieve the goals set in the light of the impact of the provisions of this Bill. It will help to prevent the issue of the state of our care sector being yet again kicked into the long grass. How many times in the past decade have we been promised a plan for the social care sector that has failed to materialise? This Bill is a crucial moment, and we should use it wisely. The amendment also has support from the BMA and the Royal College of Nursing. We do not want to find ourselves in a few years’ time with a social care sector that has not progressed from its present state following the imminent change in the immigration system. We need to act now, which is why the fresh independent assessment called for in Amendment 3 is needed.

In moving this amendment, I have to say that, if the Government’s response is similar to their response in Committee to the amendment moved by my noble friend Lord Hunt of Kings Heath, I shall seek a Division. I beg to move.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, my Amendment 30 is along the lines of Amendment 3, but tougher and more radical. I would love to know that there is some support for it, but I think Amendment 3 will edge it. However, this amendment has huge support, and I thank the people from the Scottish National Party, who on a point of principle do not take their seats in the House of Lords—or what seats they might be offered. They have done all the work in getting together a huge variety of people, including RNIB Scotland, UNISON, Macmillan Cancer Support, Disability Wales, the Church of Scotland and the Northern Ireland Council for Voluntary Action. I could go on: more than 40 organisations and NGOs support this amendment.

An absolutely crucial point, which the Minister did not tackle when I presented this amendment in Committee, was that this proposal draws in all four nations. That is something that Amendment 3, I am afraid, does not mention. My amendment would probably enable the Government to have much more support for their work; it would strengthen buy-in from stakeholders across the four nations and increase the status and profile of the evaluation.

Many of the points I wanted to make have already been made by the noble Lord, Lord Rosser, very eloquently, but many bear repeating. The Government are closing their eyes to a potential problem. My key concern is about the health and social care workforce. The organisations that have contributed to this amendment are aware that some health and social care organisations rely heavily on workers from other parts of the EU and cannot continue in their present form without support. If they are allowed to fail, other parts of the health and social care system will be needed to fill those gaps.

On efficiency and effectiveness, research carried out by the Health and Social Care Alliance Scotland in communities across Scotland highlighted that people who use support and services have concerns about their future availability. That means that with the health and social care system already creaking, combined with an elderly workforce, some people will have to try to find their own ways to minimise any negative repercussions as a result of changes accruing from leaving the EU. Then there is the adequacy of public funding for the health and social care sectors. The alliance’s report raised major concerns about the impact of Brexit and the potential loss of EU funding in health and social care in Scotland, particularly to third-sector organisations, which have a key role in the provision of health and social care services. Any loss of funding will place a further strain on that whole sector, and it seems that the Government are not acknowledging that it will be a problem.

I would therefore like the Minister to answer my point that my amendment would create buy-in from the four nations, which the Government seem to be ignoring at the moment. Also, it is quite possible that without the extra workforce that we currently get through people coming from other countries, the whole system could start to fail. Are the Government prepared to put enough money into it to make sure that it does not fail and let down all the people who care about this service?

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[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

My Lords, the noble Lord, Lord Randall, is not speaking on this amendment, so we will go directly to the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I agree with every word that the noble Baroness, Lady Smith of Newnham, has said, and she is much more polite than I feel able to be. This amendment is nasty and it is pointless. It is nasty because it panders to a right-wing obsession with immigration caps that are utterly arbitrary—on an arbitrary group of people or a number—and it is pointless because the Bill already removes freedom of movement. Can we please not bother debating this any more? It is not worth it.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

The noble Baroness, Lady McIntosh of Pickering, is no longer speaking, so we will go directly to the noble Lord, Lord Naseby.

Counter-Terrorism and Sentencing Bill

Baroness Jones of Moulsecoomb Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I am speaking on my telephone because of various IT failures; I apologise for that and hope it is clear. I welcome our two new Peers: the noble Lord, Lord Vaizey, and the right reverend Prelate the Bishop of Manchester. They both used humour in their speeches. I think they will find in future that other Peers listen harder if there is the potential for a laugh.

Many noble Lords with much more experience of counterterrorism have spoken today and I applaud those who were critical of the Government. However, for the average member of the public who might be listening, I will explain a little of what is happening in very simple language. The Prevent issue is a government omnishambles. For example, the legal deadline for the review, which was meant to be an independent review and for which many of us were waiting with bated breath, was missed. The deadline passed and no new deadline was set. This Bill now removes any deadline at all; it does not replace a deadline to produce the review. Given that the Government did not want an independent review in the first place, one can imagine that there is no sense of urgency.

Moreover, the independent reviewer they appointed was challenged. He stood down and a new reviewer has not been announced. In fact, the Home Office website has not been updated since April, so I am not sure what is going on there. It is all shambolic. These are self-inflicted delays, and a new statutory deadline should be in this Bill so that we all know when we can expect the independent review of Prevent.

The issue around TPIMs is rather nastier. Making it an indefinite procedure, with no change if there is a change in circumstances, is inhuman. Worse, the Bill changes the legal test for imposing a TPIM from “the balance of probabilities”, which is about 51%, to “reasonable grounds for suspecting”. This is an incredibly low threshold. Anyone would have great difficulty convincing a judge to stop issuing a TPIM if it is only at this level of value. It is very difficult for a judge to prove or see that something is obviously wrong; the balance of probabilities was a much fairer way of measuring the impact of somebody’s activities.

This Bill is a real shame, and I am delighted that there are so many noble Lords able to tear it into little pieces. I hope that the Government will listen to common sense.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

It is worth bearing in mind that many millions of pounds are paid out every year as compensation for illegal detention. Someone recently received £22,000. Given the noble Lord the Minister’s insistence in our discussions last week on fees that the Home Office had to watch the pennies, it seems reckless to waste public money because of unnecessary and unjustified detention. I hope the noble Baroness the Minister will respond positively to these amendments.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this amendment is about basic human decency; I am very pleased to support it. Personally, I would like to scrap immigration detention altogether. It is inhumane that we as a country are doing this to people. Convicted murderers and paedophiles get better treatment than refugees and asylum seekers fleeing war, famine and persecution, often as a result of our own foreign policy. They just want to find a better life.

This amendment would place important restrictions on the dehumanising practice of solitary confinement. Solitude is often used as a psychological torment to break a person’s spirit and enforce compliance. It should be used in only the most extreme cases, as set out in the amendment, and be subject to many safeguards. The noble Baronesses, Lady Lister and Lady Ludford, covered some of the issues I wanted to talk about, including time limits, so I will cut my remarks short. Will the Minister please take all these amendments away and work with your Lordships ahead of Report? I hope she will be able to give that assurance.

[Lord Green of Deddington (CB) [V]]

My Lords, I shall also speak to Amendments 39 to 41. I say from the start that I broadly support the Government’s policy on all these matters. All these amendments would have a similar effect. They would make it very difficult to detain a person who claimed asylum for more than a few days, irrespective of the facts of the case. It is surely perfectly obvious that such measures will make it extraordinarily easy for any claimant simply to disappear into the very large community of illegals—perhaps 1 million—that we already have in the UK.

We have to consider these amendments against the background of current events. A substantial and growing inflow of migrants across the channel is, understandably, very unwelcome to the public. They rightly perceive that they have nearly all come from a country that is safe, whether France or Belgium, and that they are not in fear of their lives. This is confirmed by Home Office evidence to the Home Affairs Committee on 3 September, which said that, of those crossing this year, 98% claimed asylum, half of which had been considered so far, and 80% of that number had been refused. Some 71% were refused because we are not the responsible country. That, of course, is because they travelled through a safe country before they arrived here.

It follows that for those who are concerned about genuine asylum seekers—I of course accept that many noble Lords and noble Baroness are concerned about them—the situation has to be tackled if public support for the asylum system is to be maintained. However, limiting detention to 28 days, as proposed in Amendment 39, would exacerbate the crisis of immigration enforcement and undermine support for asylum generally.

People need to feel confident that the asylum system, which costs the taxpayer £1,000 million per year, is producing a worthwhile result. The main effect of a 28-day limit on detention is that false asylum claimants would have only to spin out their claim or make some false statement that could not be refuted in the allotted time before being released and potentially disappearing. Indeed, the Independent Chief Inspector of Borders and Immigration has found

“little evidence that effective action was being taken to locate the vast bulk of absconders”.

It follows that illegal immigration—which, by the way, 77% of the public consider a serious problem—would intensify. The credibility of the immigration system as a whole would also be further undermined.

Some Members will remember that, on the first day of Committee, the noble Lord, Lord Adonis, rightly pointed to the crucial importance of the integrity of the immigration system in the eyes of the public at large. It is a continual surprise to me that others in the political arena seem to have failed to get this absolutely central point.