Refugees (Family Reunion) Bill [HL]

Baroness Ludford Excerpts

3rd reading
Friday 3rd February 2023 Lords Chamber

Moved by

[Baroness Ludford]

That the Bill do now pass.

[Baroness Ludford (LD)]

With noble Lords’ indulgence, I would like to make a few remarks. I warmly thank all who have supported this Private Member’s Bill and the cause of refugee family reunion in the last year. I principally thank my noble friend Lady Hamwee, who could not be here today but who made the first two attempts to get a version of this Bill on the statute book, who encouraged me to pick up the relay on my first—and now second—attempt and who inspires me generally on asylum and immigration issues. I also thank my noble friend Lord Paddick, who leads for these Benches on justice and home affairs matters and is steadfast in his championing of fairness and reasonableness in Home Office affairs. I also thank my honourable friend Tim Farron in the other place, who will seek to take this Bill, if approved today, through the House of Commons, as he sought to do last year in its previous iteration before it was defeated by Prorogation.

Colleagues in this House from other Benches have also been stalwart in their support of family reunion for refugees. The noble Lord, Lord Dubs, is of course in the top rank, but I am also very grateful to others who spoke up at Second Reading of this Bill last July and/or when we debated the same issue in Committee on the Nationality and Borders Bill almost exactly a year ago: the right reverend Prelate the Bishop of Durham, the noble Baronesses, Lady Bennett of Manor Castle, Lady Wheatcroft and Lady Jones of Moulsecoomb, and the noble Lords, Lord Kennedy of Southwark, Lord Hylton and Lord Coaker. I also thank Ministers who have engaged on this issue—although, so far, not very fruitfully.

Sadly, I do not have time to cite those who contributed on my previous Bill or on my noble friend Lady Hamwee’s two attempts, but it illustrates that there is widespread support for the cause. I also thank all those NGOs and their staff who have given such valuable briefing and who work tirelessly to bring families together, in particular: the British Red Cross, the Refugee Council—I specifically namecheck Jon Featonby, who has moved from the former to the latter—Safe Passage, Refugee Action and, indeed, the whole Families Together coalition. And there are others that I do not have time to mention.

The reasons that motivate them, me and others in the House are both humanitarian and practical. It is both compassionate and hard-headed, not least for the taxpayer, that refugees have the best possible chance to settle, thrive, integrate and stand on their own feet. That means, among other things, having their family with them instead of being distracted by terrible worry about what is happening to their loved ones. The case for easing refugee family reunion is not dissimilar to the case for allowing asylum seekers to work. It promotes dignity and well-being while saving the taxpayer money—a good Conservative case, as articulated repeatedly and so well by the noble Baroness, Lady Stroud.

The key features of this Bill are to relax the current restrictive and inaccessible discretionary rules by allowing adult dependent children to join family in the UK, to allow siblings to sponsor a brother or sister, to permit lone children to regroup with family and to allow legal aid to be claimed for the process. The Government claim that allowing more people to come on safe and legal routes would increase demand for the criminal services of smugglers. This makes no sense to me or to other supporters of an expansion of safe routes such as family reunion. The vast majority of those who make dangerous journeys have no choice. Indeed, the number of family reunion visas issued in the year to September 2022 was 36% down on 2019, so safe routes are being constricted. There is, rightly, a generous definition of “family” for Ukrainian refugees—much more generous than for other refugees—and we do not see them crossing the Channel in small boats. There has to be a connection.

The Government are planning yet more new legislation. If they want to treat even more harshly those who arrive irregularly, they should also allow better safe routes and incorporate the provisions of this Bill into their own new Bill.

[Lord Blunkett (Lab)]

My Lords, I speak very briefly to congratulate the noble Baroness and those who have worked with her on getting this far with the Bill. I just draw to the attention of the House that the Justice and Home Affairs Select Committee of your Lordships’ House, led admirably by the noble Baroness, Lady Hamwee, will in a few weeks’ time be producing a detailed report in relation to family migration rules more generally, including, of course, the content of this Bill. I hope that it will help with the debate in the other place and that people will take very seriously both the content of this Private Member’s Bill and the findings of the Select Committee.

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[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I too thank the noble Baroness, Lady Ludford, for her remarks and thank all those who contributed in previous debates on the Bill. The Government’s policy already fully recognises that families can become fragmented because of the nature of conflict and persecution, and the speed and manner in which those seeking protection are often forced to flee their own country. Our family reunion policy allows those recognised as refugees or granted humanitarian protection in the United Kingdom to sponsor their immediate family members to join them here, if the family union was formed before their refugee sponsor fled their country of origin. This has seen more than 43,700 individuals reunited with their refugee family members since 2015. This is a significant number, which highlights the policy’s success as a safe and legal route for families to reunite in this country.

I remind noble Lords that this Government fully support the principle of family unity and share the concern for those families who have been separated by conflict or oppression. It is for precisely this reason that the Government already have a comprehensive framework for reuniting refugees with their families here in the UK. I remind noble Lords that this framework is already set out in the Immigration Rules and in our refugee family reunion policy, which negates the need for the Bill and is the reason why the Government do not support it.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for replying. I am obviously disappointed but not surprised that the Government do not support the Bill, but I am afraid I must dissent from his assertion that the Government fully support the principle of family unity, because that really is not translated into policy and practice. Yes, he cites the number of family reunion visas since 2015, but it is difficult and in some cases costly and long-winded to obtain one, and it is unjustifiable to put all these barriers in the way. The rules are unreasonably restrictive and would be much improved with the Bill, so I live in hope that, one day, this or another Government will see the light and understand that it is not just compassion but hard-headed realism and cost-effectiveness that drive the reasoning of the Bill and other suggestions for improved, easier family reunion.

Bill passed and sent to the Commons.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

Moved by

[Baroness Ludford]

76: Schedule 7, page 137, line 14, at end insert—
“(2A) The requirement under paragraph 1(2)(c) must not exceed a 14-hour period.”Member's explanatory statement
This amendment is based on a recommendation of the JCHR. It is designed to ensure that rights under Article 5 of the ECHR are not infringed, and therefore it sets a 14-hour limit on the time that the subject of Prevention and Investigation Measures could be required to remain in their residence.

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[Baroness Ludford (LD)]

My Lords, in moving Amendment 76, I will also cover the other three amendments in my name—I am afraid I dominate this group 1, which is all concerning proposals made by the report from the Joint Committee on Human Rights.

Part 2 of the Bill introduces state threats “prevention and investigation measures”. I am not sure whether we are calling them STPIMs or just PIMs. Anyway, these are a set of restrictive measures that the Secretary of State could place on individuals who they reasonably believe are involved in foreign-power threat activity. Failure to comply with the measures imposed would be a criminal offence. Of course, these measures largely mirror the legislative scheme of the TPIMs—terrorism prevention and investigation measures—that can be imposed on those suspected of involvement in terrorist-related activity. There is an awful lot of experience, particularly on the Benches opposite, on that subject.

The intention behind the measures is that they should be applied to people believed to pose a significant threat but who could not be prosecuted. In fact, according to the Explanatory Notes, PIMs would similarly represent

“a measure of last resort”

applicable to those cases that, despite the wide range of new offences introduced by the Bill,

“cannot be prosecuted or otherwise disrupted.”

Clause 37 grants the Secretary of State the power to impose PIMs, while Schedule 7 sets out a wide range of requirements and restrictions that can be included, such as

“a requirement to reside at a specified residence”,

overnight curfews, exclusion from certain places or buildings, restrictions on travel, work and study, contact with others, use of phones and computers, et cetera. There is also daily reporting to a police station and GPS monitoring. So far so familiar, really, and there is a clear parallelism with TPIMs.

Amendment 76 specifically concerns the worries about the right to liberty guaranteed by Article 5 of the European Convention on Human Rights. It is the same, familiar range of concerns regarding ECHR and HRA rights—especially Articles 5, 6 and 8. Amendment 76 focuses particularly on Article 5, where concerns arise from the imposition of curfew measures. It has been established over many years of litigation arising from TPIMs—and, before that, control orders—that requiring a person to remain in their home for more than 16 hours per day is, rather unsurprisingly, likely to amount to a deprivation of liberty under Article 5. Curfews that last 16 hours or less could still engage Article 5 when coupled with other restrictive measures, particularly those causing social isolation such as separation from family.

The ECHR memorandum accompanying the Bill recognises the potential for Article 5 to be violated by a PIM, but it states that

“there are protections in place”

to prevent this, specifically the obligation on the

“Secretary of State … to act compatibly with the Convention rights”

and the same obligation applying to the courts. It is asserted that the judicial review process built into the Bill should serve as a protection against unjustified deprivations of liberty. Such protections, however, depend on the Human Rights Act which, under the Bill of Rights Bill as introduced, will be repealed and replaced. Many of us fear that the Bill of Rights Bill threatens to weaken the courts’ ability to hold public authorities to that Article 5 obligation.

The Joint Committee on Human Rights concluded that the simplest way of introducing

“A more effective protection against interference with Article 5 rights would be to include within the National Security Bill a strict limit on the number of hours for which a subject of Prevention and Investigation Measures could be required to remain in their residence”.


This amendment reflects the JCHR report’s suggestion of a maximum of 14 hours per day. The Government may have other ideas, which will be interesting to hear.

I will now speak to Amendment 77. The conditions in Clause 38, which focus on “foreign power threat activity” are defined broadly and include some behaviour which may not currently even justify arrest. In these circumstances, none the less, this Bill proposes the imposition of potentially long-lasting highly restrictive measures on an individual. While the measures are called “prevention and investigation measures”, the investigation element appears extremely limited. Clause 44 would require the Secretary of State to

“consult the chief officer of the appropriate police force”

regarding whether a prosecution is possible before imposing a PIM and for the police to “keep under review” the investigation of the individual’s conduct with a view to their prosecution for the duration of the PIM—which can be renewed for up to five years. But the Bill would place no obligation on the Secretary of State to take, or refrain from, any particular action after consulting with the police, so it appears to have no real consequences. It also does not specify any duty on the police to take action beyond keeping investigation under review; it does not actually require investigation.

Amendment 77 proposes that, given the intention for these measures to be used in cases that cannot be prosecuted or otherwise disrupted, it seems reasonable to put in a requirement that, having consulted with the police, the Secretary of State gets confirmation from them that prosecution is not realistic or feasible before a PIM is imposed. That appears to be consistent with the policy justification of this clause.

The conclusion is that the JCHR recommends that the Bill is amended to include such a provision. My other two amendments in this group are consequential, so I will close here. I am very interested to hear other views. I beg to move.

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[Lord Murray of Blidworth (Con)]

I am afraid I do not have that information to hand. My conjecture would be that it is fewer, but I will confirm the position and write to the noble Lord.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for that reply. I also thank the noble Lord, Lord Coaker, for calling these amendments simple but important. I am grateful for his support.

On Amendment 77, I note the Minister’s assurance that he believes that the current drafting would achieve the aim of pursuing the possibility of prosecution, but obviously that incorporates not only a static but a dynamic possibility. I think the fear of the JCHR is that the wording, certainly in Clause 44(5), does not really imply any ongoing investigative mission, as it were. Saying “If we can prosecute, we will” has to mean that a certain re-evaluation takes place. But that is not all that Clause 44(5) says. It says that the chief officer of police must

“secure that the investigation of the individual’s conduct … is kept under review”.

It does not actually require any investigation, or any periodic investigation, so I am not really persuaded, despite the Minister’s reassurances, that that sense of a dynamic possibility of keeping the potential for prosecution under if not a permanent but certainly a periodic review is incorporated into the drafting of the Bill. We may come back to this at a later stage, but I am not entirely persuaded by the Minister.

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Moved by

[Baroness Ludford]

80: Clause 54, page 38, line 22, after second “of” insert “Part 1 and”
Member’s explanatory statement
This amendment is recommended by the JCHR and would extend the review function of the Independent Reviewer to cover Part 1 of the Bill in addition to Part 2.

[Baroness Ludford (LD)]

My Lords, I assure the Committee that this will not be a one-woman show all afternoon. I can be very brief on Amendment 80 because we will be hearing about Amendment 81.

The Bill establishes an independent reviewer in relation to PIMs under Part 2 and the JCHR felt that this, while a welcome additional safeguard, was too narrow and it was unclear why the independent reviewer’s role should be restricted to Part 2, because there are also significant concerns about how powers under Part 1 will be exercised. So we made a simple proposal, reflected in Amendment 80, recommending that the independent reviewer’s role should be extended to cover Parts 1 and 2 and that the Government should consider whether it could cover other core national security legislation.

As I say, I can be very brief because I tabled Amendment 80 before seeing Amendment 81, and we are about to hear from the heavyweights on this subject that they propose to make it even broader under further parts of the Bill. So I beg to move Amendment 80 but do not expect to say much more about it.

[Lord Anderson of Ipswich (CB)]

My Lords, my Amendment 81 is a bit wider than that of the noble Baroness, Lady Ludford, who is certainly a heavyweight in my book. I agree with what she has had to say about that.

Post-legislative scrutiny can take many forms, but where powers are exercised on the basis of secret intelligence, the options are more limited. Select Committees can do little, because they lack access to classified information. The Intelligence and Security Committee has that access, but its remit is focused on the intelligence agencies themselves. It is not equipped to review the operation by police and prosecutors of the new criminal offences in Part 1 of the Bill—or the new procedures in that part—or, indeed, to concern itself with the questions of damages and legal aid in Part 4.

The Independent Reviewer of Terrorism Legislation—its origins dating back to the 1970s—is the solution arrived at in one part of the national security landscape. The independent reviewer is an independent person with full security clearance—but without bureaucratic apparatus—reporting to government. Reviewers serve Parliament and the public by reviewing operational matters which, for national security reasons, neither they nor the usual inspectorates can scrutinise themselves. Their findings are often referred to by the courts and their recommendations taken on board by police, agencies and government.

The independent reviewer has spawned two imitators, in Australia and, more recently, in Ireland. I mention that because the independent monitor in Australia and the planned independent examiner in Ireland—the Bill has recently been published—are each entrusted with scrutinising the operation of national security law in its entirety, not just counterterrorism law. The same principle should apply here. The use of laws governing hostile state activity can be both as secretive and as sensitive as the use of laws against terrorism. That, no doubt—as the Minister said in the last grouping—is why the Government have already agreed to extend the jurisdiction of the independent reviewer to Part 2 of the current Bill, which is all about foreign power threat activity rather than terrorism.

Equally compelling, I suggest, are the arguments for independent review of Part 1. Part 1 is a complete recasting of the law against espionage, sabotage and acting for foreign powers. The offences and police powers are novel and untested; the risk of unintended consequences must be high. The offences will presumably be the subject of prosecutions. However, there is no mechanism for systemic oversight, either of the offences or of the far-reaching powers of entry, search, seizure and, in particular, detention, which are the subject of Clause 6, Clauses 21 to 26 and Schedules 2 and 6 to the Bill. Powers such as these can be controversial in their application: they are the meat and drink of the independent reviewer’s work.

Part 4 is all about terrorism and so falls even more naturally within the existing powers of the independent reviewer. History has shown the value of the scrutiny of the independent reviewer, not least in the years after 9/11, during which my noble friend Lord Carlile performed the role with such distinction. It is all the more necessary in this ever-questioning age. Indeed, something of this nature is a prerequisite for what has been called the “democratic licence to operate” that our secret state requires. The current independent reviewer, Jonathan Hall KC— who performs the role with imagination and acuity—has been consulted on this amendment. He is the obvious person to review Part 4 because of the terrorist connection. I suspect he could take on Parts 1 and 2 as well: our counterterrorism law is neither novel nor, for the most part, as controversial as it once was. But in case his apparently infinite energy should ever flag, my amendment—inspired by Clause 54, which it replaces—gives government the flexibility to appoint a different person to review Parts 1 and 2.

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[Lord Murray of Blidworth (Con)]

We invite the proposers of the amendments not to press them; further information will follow.

[Baroness Ludford (LD)]

Well—my noble friend Lord Purvis of Tweed asked the obvious question of what happens next, and we got a rather obscure answer. I hope the noble Lord, Lord Anderson, will be able to tease out a little more about what the next steps might be.

I thought the Minister started on a rather encouraging note. I thought he was going to say, “Yes, Amendment 81 is jolly good, and we accept it”. I would imagine that it has been the subject of discussions and exchanges and so on, but the promise that came from the beginning of the Minister’s remarks was not really realised, or not realised at all.

In breathless anticipation of what the noble Lord, Lord Anderson, is going to say—I hope that I am not taking his name in vain, as it were—I beg leave to withdraw Amendment 80. I hope, however, that this is not the end of the discussion on Amendment 81.

Amendment 80 withdrawn.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, my noble friend Lord Hacking must make sure that he is here on the Wednesday we come back; I am sure that we will start with the debate he referred to, which will probably be quite a significant and long one. Just to give him time and to get my retaliation in first, I tell the Minister that I have read the relevant bit of Schedule 6—paragraph 1(2)—which he will say makes my amendment irrelevant because it is covered there. I know that; I have put this down so that we can have a debate on it.

In moving my Amendment 60, I recognise the very important issues raised by Amendments 61 and 63 from the noble Baroness, Lady Ludford. We are returning to Schedule 6, which deals with detention under Clause 25, “Arrest without warrant”, which is a significant power. We accept that there is clearly a need for individuals to be detained under the offences in the Bill, but I have a number of questions to seek clarification from the Minister—hence my Amendment 60.

Committee allows us to look in detail at various sections and parts of the Bill and seek clarification on what the Government mean by certain phrases. That is of particular interest because many people read our deliberations and they are often used in the courts to try to inform judgments. I hope the Government will bear with me if some of my questions appear to have obvious answers.

Clause 25(1) states:

“A constable may arrest without a warrant”.

Is that only a constable of a police force, not any other organisation? Is it all UK police forces? Does it include other forces, for example a constable of the MoD police, the British Transport Police or the Civil Nuclear Constabulary? Are there any special arrangements for Northern Ireland, given that the Bill says that any officer of any police force can use this power in any part of the United Kingdom? If they are not in uniform, do they have to produce their warrant to show who they are?

In Clause 25(6), the original detention of 48 hours can be extended by a review officer. How many times can this be reviewed and for how long can someone be detained? Is there a maximum limit or can they be renewed on multiple occasions? At what point would there be any judicial involvement in the process to agree any continuing detention beyond the original 48 hours?

Can the Minister confirm that my Amendment 60 is not needed, as I said at the beginning, because paragraph 1(2) of Schedule 6 says that detention has to be in

“land or a building in the United Kingdom which is owned … by a police force.”

Does this include all types of police force? Would it include the buildings and lands of the British Transport Police, the Civil Nuclear Constabulary, the MoD police, et cetera?

Can the Minister also confirm on the record that no person arrested without warrant under Clause 25 can be held in any UK buildings or land in any security service building outside the UK, any Armed Forces facility or land outside the UK, or any other such facility? There is a need for some clarification here, in the sense that UK military bases are sometimes referred to as “sovereign territory”. Does that imply that they are in the UK and could therefore be used, even though they are not within what one would normally assume to be the borders of the United Kingdom?

Can the Minister confirm or otherwise whether Clause 25 can be used outside of the UK to arrest a UK national who is believed to be involved in a foreign power threat activity within the United Kingdom? If so, how does that actually work? If a UK national is arrested abroad because of the threat they have posed through an activity within the United Kingdom, how is that person then detained and brought back, or can the offence not be used against a UK national who is abroad even if they are believed to have committed an offence when they were within the United Kingdom?

I will leave the noble Baroness, Lady Ludford, to speak to her amendments, but they address the idea that, in a democracy, the proper treatment of detainees must not only be done but be seen to be done. Which body or independent reviewer is or will be responsible for oversight of the operation of Clause 25 and Schedule 6? As I have said, these Benches accept the need for such arrangements, but clarity of purpose and transparency are essential when dealing with issues of arrest and detention. Our democratic traditions demand that we do so in this area, as much as anywhere else. With that, I beg to move.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.

We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.

My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.

[Lord Hacking (Lab)]

My sympathy lies with you.

[Baroness Ludford (LD)]

And mine with you. I look forward to the debate on Clause 28.

The Government’s response, which we finally received, does not seem very strong. It says:

“The Government considers that, if the matters relate to the proceeds from crime from state threats activity, in most cases this will be highly sensitive information and every effort should be made to prevent the suspect from having any knowledge that our law enforcement agencies are aware of where these proceeds are located.”


I may have missed something, but while the whole Bill is about national security, I am not sure that the condition that the proceeds from crime arise from state threats activity is there. Maybe it is in Clause 25. I ask the Minister to follow up on paragraph 88 of the Government’s response to clarify whether I am being insufficiently on the ball and whether that further condition that the proceeds of crime arise from state threats activity is there. Otherwise, it does not seem to us pertinent that you should be able to withhold information, stop access to a solicitor and stop allowing people to let others know where they are if it is specifically about asset recovery. Important though that objective undoubtedly is, this is a National Security Bill.

On Amendment 63, the contention I make, inspired by the JCHR, is that the reviews of detention without warrant should be able to be postponed only for well-defined and justified reasons. At the moment, it can happen where

“no review officer is readily available”

or

“it is not practicable for any other reason to carry out the review.”

That seems to us illegitimately broad.

In their response, the Government give an example, saying

“these provisions ensure a wide range of instances”—

that is certainly true—

“which might result in a review not being able to be carried out are covered – for example, if the suspect is undergoing medical treatment. It would be impossible to outline every scenario that may impact a review … therefore this approach”,

which I would describe as wide,

“is preferable.”

The example of a detainee undergoing medical treatment does not cover or justify the “no review officer is readily available” reason. It might fall under the other arm—“it is not practicable for any other reason to carry out the review”—if the detainee is ill and is being supported with medical treatment. However, postponing a review because no review officer is readily available is based on a staffing matter; the detainee really should not be put in this position because somebody—the Home Office, the MoJ or whoever—is unable to supply a police officer or whoever else is in charge to carry out the review.

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[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions. I speak first to Amendment 60, tabled by the noble Lord, Lord Coaker. First, I thank him very much for the frank way in which he posed his questions, and I am glad to say that I can answer the first tranche of his questions simply with yes. I will set out in more detail why that is.

The amendment relates to the power for the Secretary of State to designate sites where those arrested under Clause 25 can be detained. There was a lively debate on this topic in the other place, which led to the Government carefully considering this issue and amending the Bill to provide for the sites to be designated only if they are in the UK. As the noble Lord observed, this provision can be found at paragraph 1(1) of Schedule 6, and I can confirm that is indeed the case. That states that the power

“may be exercised only in relation to land or a building in the United Kingdom which is owned or controlled by a police force”—

so that is any police force.

The Government consider that the amendments to Schedule 6 in the other place have sufficiently clarified the need for and the intention behind this power and I understand that this satisfies the noble Lord’s concerns regarding where the sites may be located. Just to confirm, the power therefore extends to the MoD Police, the British Transport Police, ,the Civil Nuclear Constabulary, et cetera, and there are no special arrangements in relation to Northern Ireland.

Clause 25(6) confirms that a 24-hour detention period can be extended by a reviewing officer to a maximum of 48 hours. The first review is as soon as reasonably practicable after arrest and then this must be reviewed at least every 12 hours, obviously up to the maximum.

The noble Lord mentioned arrest abroad. UK constables do not have the power of arrest abroad and the powers therefore do not therefore extend to Armed Forces police abroad. Any relevant people would be arrested by local officers and extradition would be arranged in the conventional way.

I will return to the topic of oversight later but I can confirm that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a statutory role in inspecting all police forces under Section 54 of the Police Act 1996, about which the noble Lord knows. That body regularly inspects all aspects of policing, including places of detention. Given that any sites designated under this power will be under the control of the police, they would automatically be subject to their inspection, and the Government therefore believe that there is no need to include a further statutory inspection regime as this will be duplicative.

I can confirm that it was never the Government’s intention to designate sites located outside the UK. This amendment clarifies the policy position. In Northern Ireland, the Police Service of Northern Ireland is subject to annual statutory inspection by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services under Section 41. Similarly, in Scotland, His Majesty’s Inspectorate of Constabulary in Scotland provides independent scrutiny of Police Scotland and the Scottish Police Authority. We do not consider it reasonable to interpret this to include locations under the temporary control of a police force, such as a crime scene.

Amendments 61 and 63 in the name of the noble Baroness, Lady Ludford, are to Schedule 6. They seek to implement two of the recommendations from the Joint Committee on Human Rights’ report on the Bill. The first amendment seeks to remove the ability for the police to delay a suspect’s access to certain rights while being detained under the arrest power in the Bill for solely asset recovery reasons; I will address this first, if I may.

If the police have intelligence to suggest that a detained suspect has property that is connected to suspected criminal activity—for example, cash—and might use their permitted communication with a named person or their solicitor to ask them to take steps to move cash or property on the suspect’s behalf, to hide evidence or otherwise ensure that the asset cannot be seized by the police, it is clearly right that the police should be able to delay that communication taking place while they seize those assets, gather associated evidence and ensure that crime does not pay. I believe that the safeguards written into the Bill as drafted are sufficient when delaying these rights. The direction to delay must be given by a senior police officer, who must have reasonable grounds to believe that allowing access to these rights at that point in the investigation will hinder recovery of the property.

Additionally, it is written into the legislation that the suspect must be allowed to exercise both these rights within the first 48 hours of detention, so there will not be a situation where a suspect is detained for longer than this without exercising these rights. More details on this process will be contained in the code of practice made under this part of the Bill, including the fact that any delay in these rights must be recorded in the custody record and the suspect must be informed of the decision. Similar provisions can be found in PACE Code H, which operates for detentions under the Terrorism Act 2000.

I turn to the noble Baroness’s second amendment—

[Baroness Ludford (LD)]

I apologise for interrupting but, before the Minister moves on to Amendment 63, can he explain something? It may just be my inability to see it but, in their response, the Government refer to

“proceeds from crime from state threats activity”.

I have not been able to find that phrase in the text of the Bill; it just refers to how there can be a delay in informing a family member or notifying a solicitor if

“the detained person has benefited from their criminal conduct”

and the recovery of the asset “will be hindered by” those rights being exercised. Where does it refer to proceeds of crime arising from state threats activity, so that one can see it being brought within the national security purview? I cannot see that in the text but I am sure that the Minister can point out how the response is justified on that point.

[Lord Murray of Blidworth (Con)]

Forgive me; the answer is that, in the text of the Bill, this is not limited to state threats proceeds of crime. The operation of the Bill is as I just described in my speech and, as I have already said, its safeguards are built into the statute itself.

The second amendment to Schedule 6 tabled by the noble Baroness seeks to remove certain circumstances whereby a review of a suspect’s detention may be postponed. There are various reasons why a review may need to be postponed. For example, the suspect may be receiving medical treatment and be unable to make representations on their continued detention to the review officer. It may be that there is a delay in the review officer arriving at a custody suite, or they may be reviewing another suspect’s detention if multiple arrests have been made in a short period.

It is impossible to predict all the possible circumstances and make specific provision for them in the legislation. The legislation does not provide for the review to be permanently postponed. It is required to be carried out as soon as possible, but this proposal provides for some operational flexibility. The code of practice—which, as I have said, the Government will publish in due course—will provide further information on reviews of detention, and we will state the requirement for any postponement of detention reviews to be recorded on the custody record. In the meantime, similar provision again can be found in the Police and Criminal Evidence Act code of practice code H, which operates for detentions under the Terrorism Act 2000.

With that, I conclude.

National Security Bill

Baroness Ludford Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

Moved by

[Baroness Ludford]

4: Clause 1, page 1, line 15, after “article” insert “with a Government security classification of “Secret” or “Top Secret””
Member's explanatory statement
This amendment is recommended by the JCHR and would confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).

[Baroness Ludford (LD)]

My Lords, the debate on Amendment 4 flows fairly naturally from the previous debate. The amendment flows from the report by the JCHR, which I am a member of, and is designed to

“confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).”

As the offence relates to the sharing of information, freedom of information—which is of course protected under Article 10 of the European Convention on Human Rights—is engaged, including the potential that it could catch journalism, political expression or whistleblowing activity. This could potentially capture a wide range of information, not least given the uncertainty we have just been discussing as to how the words

“safety or interests of the United Kingdom”

might be applied in a given case.

The requirement that the information be “restricted in any way”, or even that it might be “reasonable to expect”—that also harks back to the preceding debate—that information be restricted in any way, lacks clarity and legal certainty. As your Lordships can see, common themes are emerging. It would of course catch information that was not protected but it was reasonable to expect that it would be. The Government’s Explanatory Notes set out that it would cover non-classified information accessible in a building with restricted access, such as a government building.

I recall the severity of the offence; with a potential punishment of life imprisonment, it might be reasonable in the light of that to expect that it would attach to a clear type of information such as that categorised as “Secret” or “Top Secret”. It seems unreasonable and disproportionate that the offence should attach to information simply categorised as “protected”, or indeed official information that is not restricted at all.

The offence as currently drafted in Clause 1 does not make it sufficiently clear what information is considered to be protected for the purpose of this offence. It creates an unacceptable level of legal uncertainty, raising concerns about compliance with rights to liberty and security, the right to a fair trial and the right to freedom of expression, as protected by Articles 5, 6 and 10 of the ECHR.

As proposed by the JCHR report, in the interests of improving legal certainty and proportionality, this amendment proposes that the clause be amended to say that it applies only to information at a certain level of categorisation and therefore sensitivity, such as “secret” or “top secret”. The report suggests that the details of what could be included could be contained in a non-exhaustive indicative list or specified in a statutory instrument, but this amendment is designed to tighten up the offence so that it does not spread too far or impact too much on freedom of expression, journalism and other lawful activities. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, our Amendment 6 would omit Clause 1(2)(b). Your Lordships will know by now that Clause 1(2)(a) deals with protected information as being when

“access to the information, document or other article is restricted in any way”,

as my noble friend Lady Ludford has explained. However, Clause 1(2)(b) goes on to say that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”—

that way being entirely unspecified.

It is our position that the inclusion of Clause 1(2)(b) takes the clause far too wide. There is no answer to who would be doing the restricting, or what the determinant would be of when and how it would be reasonable to expect restriction. It might be completely reasonable to expect a mad authoritarian Government to restrict the most innocuous but possibly controversial informational document for the purpose of saving public or national embarrassment. Yet that would not make the entirely unjustified restriction on the information or document any less unreasonable; nor would it make the removal of the document from the public domain more justifiable.

This is a misplaced provision, and it should go. We agree with my noble friend Lady Ludford on the JCHR’s Amendment 4, that the restriction of prohibited information ought to be limited to “secret” and “top secret” categories as a matter of definition.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

It is the intention to benefit that foreign power that is in this Bill, and it seems to me that that is a sufficiently clear and adequate definition to afford protection under the proposed section.

[Baroness Ludford (LD)]

My Lords, I was just looking up to see whether the words “intended to benefit a foreign power” were actually in the Bill, but I did not have time. In skimming through, I did not see them.

The Minister’s response has not really reassured me. The lack of definition of “interests of the UK”, with a question mark over what that means and how you could conflate the interests of the country and the interests of the current Government, coupled with the potentially wide definition of “restricted”, suggests, to myself and my noble friends on these Benches at least, a lack of precision and an opportunity that is too wide, especially considering that the penalty that could be faced is life imprisonment. Surely, there is an onus on us to secure a tight definition of offences in this Bill.

The other missing element, which we will come to in further discussions, is the lack of a public interest defence or a whistleblowing defence. What we are facing here is considerable uncertainty about what the real scope of the offence could be. As my noble friend Lord Marks said, the term “restricted in any way” is so undefined, it could cover innocuous but controversial documents, which could be restricted to prevent embarrassment. That is the discussion we keep having on journalism and whistleblowing: we should not open the door to the criminalisation of obtaining or publishing material that could be embarrassing to the ruling party.

I scribbled some notes, but I am afraid I cannot remember which noble Lord made this point. I think it was the noble Lord, Lord Anderson. How are we meant to know what non-classified information is protected? It could apply to anything, however innocent, that was not published. If the Government have a document that they regard as restricted, even though it is not classified, the fact that it has not been published would mean it was restricted, although it may not be damaging except possibly to the reputations of the Government or Ministers.

If I were to get hold of a document saying that a Bill—for the sake of plucking something out of the air, let us say the Northern Ireland Protocol Bill—is designed to assuage some elements of political opinion in the party in power but is highly damaging to the diplomatic and economic interests of the United Kingdom, would that fall within the terms of the offence under Clause 1? In those circumstances, what is the nature of the restriction? What is the harm committed and what is the test of UK interests?

We keep coming back to the considerable grey areas in this whole package around Clause 1 and other clauses. I think we will want to explore this matter further. Otherwise, we are driving a coach and horses through the exercise of freedom of expression and other rights under the European Convention on Human Rights, which for the time being the UK is still a party to.

[Lord Purvis of Tweed (LD)]

I think my noble friend and I are reading the same version of the Bill, but I am not sure the Minister is. There is no reference to benefiting a foreign power with intent, so I hope that at some stage during Committee the Minister will be able to clarify this position.

[Baroness Ludford (LD)]

I thank my noble friend very much for that extremely useful intervention. I think we will have further discussion on this whole lack of precision in definitions in the Bill, especially considering the nature of the potential penalty: life imprisonment. You cannot afford to be vague about definitions in that context. In the meantime, I beg leave to withdraw my amendment.

Amendment 4 withdrawn.

--- Later in debate ---

Moved by

[Baroness Ludford]

8: Clause 2, page 2, line 18, at end insert—
“(ca) the person’s conduct is significantly prejudicial to the safety or interests of the United Kingdom, and”Member’s explanatory statement
This amendment is recommended by the JCHR and would narrow the scope of the offence of obtaining or disclosing trade secrets so that it applies only to trade secrets that would prejudice the safety or interests of the UK.

[Baroness Ludford (LD)]

My Lords, this is a JCHR-recommended amendment under Clause 2, which is about making it an offence to obtain or disclose trade secrets, punishable by up to 14 years’ imprisonment. Again, the JCHR feels that, as the offence is about the sharing of information, freedom of information—protected under ECHR Article 10—is engaged, including the potential that it may catch journalism, political expression or whistleblowing.

It is difficult to justify this as being in the interests of national security because no element in the offence has a link to the interests of national security, or indeed to the safety or interests of the United Kingdom. In their human rights memorandum the Government did not address the compatibility of this offence with ECHR Article 10. In the offence there is no requirement for there to be any detriment to the UK or to the public. As such, this seems to be really an offence of theft affecting a private actor. It does not really belong in a national security Bill.

The examples given in the Explanatory Notes relate to artificial intelligence and energy technology, which suggests that the Government envisage industries with links to critical infrastructure and national security concerns for this offence, rather than mere commercial secrets—important but not relevant in the Bill—relating to industries that pose no risk to national security. But as drafted the offence risks catching all trade secrets, no matter their relevance or lack of relevance to national security. As I say, that is more properly governed by the offence of theft. In his reply, perhaps the Minister can tell me why it is not covered by the offence of theft.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

Yes, I am happy to give that reassurance. This is just me flying somewhat solo, so I shall clarify that, but I can think of a number of circumstances where it would very much depend on the corporate. But I shall seek official clearance on that. In light of all those answers, I respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Ludford (LD)]

My Lords, that was another interesting debate. I am very grateful to the noble Lord, Lord Pannick, for defending the honour of the JCHR against a charge of naivety from the noble Lord, Lord Carlile, which I reject. I am sure that the JCHR is capable of understanding the noble Lord’s points.

As the noble Lord, Lord Pannick, said, there is a mischief here. As the noble Lord, Lord Macdonald, said, economic espionage can be against national security—and it can be, but I think that the Minister went further than that. He said that economic prosperity and national security were synonymous. That is a very broad assertion. For instance, the shareholders in Tesla apparently believe, because the share price of Tesla has dropped rather fast, that Elon Musk has neglected the economic prosperity of Tesla by his concentration on Twitter. I do not think that any of us would regard the share price of Tesla as affecting the national security of the United States. I believe that the Minister is wrong in saying that economic prosperity and national security are synonymous, but of course I accept that economic espionage can certainly damage national security.

As my noble friend Lord Marks said, my Amendment 8 intends precisely to put in a test or condition that the theft of a trade secret is prejudicial to the “safety or interests of the United Kingdom”, preferably with that term redefined by amendments from these Benches. Without that condition, as the noble Lord, Lord Pannick, said, Clause 2 does not belong in this Bill. I conclude that I am really not persuaded by the arguments against Amendment 8. When damage to economic prosperity is also harmful to national security, that would be satisfied, if a test of that was added—and I have not heard an argument as to why that test is missing from Clause 2. If the Minister is correct that economic espionage and damage to national security are synonymous, what is the harm of putting in a definition, as the amendment suggests? But I have not yet persuaded the Minister, or indeed some other Members of the House, so for the time being I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

I have watched quite a number of debates in your Lordships’ House and am always struck that the Government invariably reject all the wonderful advice they get from their KCs and former judges. I appreciate that it is much harder when they disagree, but perhaps they ought to look a little more closely at these amendments, read Hansard and think about changing some of the Bill.

These are extremely serious offences. They are meant to protect national security, but currently they do not need intention to be proven. That is incredibly important. A person could unwittingly commit a serious criminal offence without having the foggiest clue that they were doing anything wrong. That is not to suggest that ignorance is a defence, but unintentional consequences to the UK’s interests should not be a serious criminal offence.

One example that is extremely important to me is journalists and whistleblowers exposing government wrongdoing. As the noble Baroness, Lady Ludford, said in the previous group, it is a perfectly legitimate activity that risks being criminalised by this legislation. The intention of journalists and whistleblowers is not to harm national security but to hold power to account. That is partly what your Lordships are doing in this House, so we should take every opportunity to support journalists and whistleblowers who do it too. I am concerned that they might be trapped by this legislation.

Likewise, the offence in Clause 15 risks criminalising people for receiving a benefit from an intelligence service. Those benefits include receiving information. A person could commit a criminal offence simply through a foreign intelligence service telling them some information which they may not want to hear, potentially completely against their will. Overall, these clauses are deeply flawed and need substantial rewriting.

[Baroness Ludford (LD)]

My Lords, I will speak to Amendments 16 and 21. I will get a bit repetitive in the debates on this Bill, since I am speaking to amendments stemming from the JCHR, whose job is to pay attention to human rights.

The problem that Amendment 16 seeks to address is that the conduct that could be criminalised is very wide and could include conduct that engages a number of human rights, most obviously freedom of expression, as the noble Baroness, Lady Jones of Moulsecoomb, said—journalism, other political expression and possibly whistleblowing—but also freedom of association and the right to protest. The Government have not sought to justify any interference with human rights in respect of this new offence in their human rights memorandum. It seems difficult to argue credibly a national security justification for bringing proceedings under this clause when there is no prejudice to the safety or interests of the United Kingdom in the test of the offence.

Conduct outside the UK is not caught unless it is

“prejudicial to the safety or interests of the United Kingdom”

but that test does not apply to conduct within the UK. I hope the Minister can explain why. The JCHR gives the example that the offence would seem to criminalise a French national in the UK who alerts the French intelligence authorities to a terrorist threat in the UK. Let us posit that they do not know how to alert the authorities in the UK. It does not seem very sensible to criminalise such behaviour. Amendment 16 suggests a requirement that the conduct must have the potential to harm UK interests—

[Baroness Manningham-Buller (CB)]

I may have misunderstood the noble Baroness, so perhaps she would be kind enough to clarify. Did she say that the French intelligence service would not know how to contact the British authorities about an incident in the UK? It may be my fault for not hearing—I apologise if it was.

[Baroness Ludford (LD)]

It is possible that I gabbled. I would not suggest that the French intelligence authorities would not know how to contact their UK counterparts; I think we all hope and believe that there is close collaboration between them.

[Baroness Manningham-Buller (CB)]

I assure the noble Baroness that they absolutely would.

[Baroness Ludford (LD)]

Of course; the example in the JCHR report was of a French national in the UK—an ordinary person working in a bar or a bank who alerts the French intelligence authorities to a terrorist threat in the UK. It may or may not be hugely realistic, but that would be criminalised, which does not seem very sensible. The focus of Amendment 16 is to add a test of

“prejudicial to the safety or interests of the United Kingdom”,

always with the caveat that we want that test to get further attention and elaboration.

Amendment 21 concerns the offence of entering a prohibited place, which is punishable by up to 14 years’ imprisonment. Clause 5 is about accessing a prohibited place where

“the person knows, or ought reasonably to know, that their conduct is unauthorised.”

There is no requirement in this offence for any prejudice to the safety or interests of the UK. The JCHR suggests that it is more akin to an offence of criminal trespass—it will have nothing to do with national security, unless there is some sort of test of national security.

All the amendments I have spoken to today are about tightening up definitions so that we do not inadvertently catch what ought not to be criminalised behaviour and avoid any clash with human rights under the HRA and the ECHR.

[Lord Pannick (CB)]

My Lords, I share the concerns expressed by the noble Lord, Lord Marks, and the noble Baroness, Lady Ludford, about the breadth of Clause 3, particularly Clause 3(1), and the absence of any requirement that the defendant intends that the conduct will prejudice the safety or security or defence interests of the United Kingdom.

The noble Lord, Lord Marks, gave a practical example relating to Mossad which I will not repeat. I have a concern because of my professional interest as a practising barrister, and I would welcome advice from the Minister as to whether I will be committing a criminal offence under Clause 3(1) if I give legal advice to a foreign intelligence service in carrying out UK-related activities. Clause 3(1) refers to “conduct of any kind”; it is a criminal offence, punishable with 14 years’ imprisonment, for me to materially assist a foreign intelligence service in carrying out UK-related activities. My advice, of course, may be to say to that foreign intelligence service, “You can’t do this in the United Kingdom, it would be unlawful, and you should be aware of that”, but what are the potential defences if I am prosecuted? Under Clause 3(7), it is a defence for me to show that I am acting

“in compliance with a legal obligation under the law of the United Kingdom which is not a legal obligation under private law”.

I am very doubtful that my actions as a practising barrister fall within that provision. It is a defence, however, under Clause 3(7)(b)

“in the case of a person having functions of a public nature under the law of the United Kingdom”.

I do not have that; I am a mere practising barrister. Clause 3(7)(c) relates to some agreement with the United Kingdom; that does not apply.

The only other defence that I could offer when I am prosecuted at the Old Bailey for giving legal advice is the exemptions for legal activity which are in Schedule 14, but they seem to me—and I would be delighted to be corrected if I am wrong—to be exemptions confined to the provisions to which we will come which concern requirements to register foreign activity arrangements and foreign influence arrangements. We are not talking about that; Clause 3 is not concerned with any of that. My question to the Minister is please can I be told whether the legal advice that I give as counsel to a foreign intelligence service falls within the scope of Clause 3(1). I raise this not just because I am very concerned not to end up at the Old Bailey but because that demonstrates that Clause 3(1) is far too wide. It really needs to be redrafted to ensure that it addresses only matters of national security.

--- Later in debate ---

Each offence in the Bill has been carefully drafted with consideration as to the necessary elements. For those offences which already include a requirement for prejudice to the safety or interests of the UK, the proposed amendment would be unnecessary and duplicative. For those offences which do not already include a safety or interest of the UK test, the proposed amendment would mean that we would not capture all the behaviour about which the Government are potentially concerned. For all of those reasons, I invite the proposers to withdraw the amendment.

[Baroness Ludford (LD)]

The Minister has the advantage of having read the Government’s response to the JCHR report. As a mere member of the JCHR, I know that, unfortunately, two months after Report, it did not come in time for this Committee, let alone Second Reading. I look forward to reading it.

I did not follow every detail of what he read, but could the Minister tell me what guards against someone being prosecuted under Clause 5,

“Unauthorised entry etc to a prohibited place”?


The clause raises worries about protestors, journalists, photographers and so on, and does not have a test of breaching national security because the criteria in Clause 4—where there is a test of prejudice to the safety or interests of the UK—are not met. It could look as though you have the lower offence, with the possibility of six months imprisonment, where there is no purpose to assist a foreign power and no prejudice to the interests of the UK, but the catch-all of Clause 5, where anyone who wanders on to Ministry of Defence land can attract a six-month prison sentence, whether or not they have done any espionage or harm to the security of the UK. What is the defence to Clause 5 being some sort of compensation for not being able to charge under Clause 4?

[Lord Murray of Blidworth (Con)]

As I sought to explain to the Committee, the Clause 5 offence can be committed only where a person engages in the specified conduct in relation to a prohibited place that is unauthorised, and they must know, or ought reasonably to know, that their conduct is unauthorised. It is specifically the point, as I hope I alluded to in my remarks earlier, that the Clause 5 offence is the summary-only offence, which is intended to preclude unauthorised entry to prohibited places to avoid the risk of national security consequences.

--- Later in debate ---

Moved by

[Baroness Ludford]

23: Clause 6, page 6, line 18, leave out paragraph (c)
Member's explanatory statement
This amendment is recommended by the JCHR and would remove the power of the police to order a person to leave an area “adjacent to” a prohibited place.

[Baroness Ludford (LD)]

My Lords, the offences and powers in Part 1 of the Bill, which are about entering a prohibited place, are incredibly wide and were detached to significant areas of the British countryside such as Ministry of Defence land covered by public footpaths frequented by tourists, hikers and dog walkers. My amendments in this group aim to guard against innocent members of the public inadvertently committing a criminal offence and to tighten up the conditions for the police to exercise their powers.

It does seem disproportionate to apply the restrictions, and police powers and criminal offences, to land, vehicles and buildings which do not disclose any significant risk to the safety or interests of the UK. Of course, under Clause 8, the Government would give themselves powers to declare additional land, buildings or vehicles to come under the definition of prohibited places. It may not be possible for the public even to know how much of this land and how many vehicles and buildings are Ministry of Defence property and prohibited places. They could risk committing an offence without being aware that they were approaching a Ministry of Defence car, which may have no markings at all, or walking along a coastal path which was Ministry of Defence property. My noble friend Lord Marks was talking in the previous group, or maybe the one before, about how dangerous it is to have wide definitions in criminal law. That is intrinsically bad but imagine if we got a truly authoritarian Government in this country.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Yes. My suspicion is that both answers are in the affirmative, but I am afraid I do not know for sure. I will find out from my officials and write to the noble Lord. I thank him for raising that.

[Baroness Ludford (LD)]

My Lords, I am quite disappointed by the Minister’s responses on this. There are considerable dangers in this part of the Bill. The Minister referred to the fact that the offence under Clause 4 is committed only if

“the person knows, or ought reasonably to know,”

that their conduct

“is prejudicial to the safety or interests of the United Kingdom.”

We have been around those houses before. Ought ramblers reasonably to know that they are

“in the vicinity of a prohibited place”?

Again, what does that mean? It is like “adjacent”. I do not think the Minister replied on the meaning of “adjacent”; forgive me if I missed that. It is all very difficult for some normal, uncriminal person to know that they are committing an offence under Clause 4. Clause 5 also says they “ought reasonably to know”. It is all rather reminiscent of being “in the vicinity” or “adjacent”. The Government also have powers to designate more places as prohibited.

The Minister drew our attention to the defence

“to prove that the person had a reasonable excuse for that failure”

under Clause 11 in relation to a cordoned area. As far as I can see—I might have missed it—there is no such reasonable excuse defence in relation to the offences under Clauses 4 and 5 on entering or unauthorised entry to a prohibited place. If I am wrong, no doubt the Minister will be able to write to correct me.

This all seems quite reminiscent of the Covid restrictions. In the last couple of days, the human rights barrister Adam Wagner did a review of Matt Hancock’s diaries, or so-called diaries. Presumably, as he is an ex-Cabinet Minister, this publication would have been vetted by the Cabinet Office. This is the Minister who would have signed off all the SIs on Covid restrictions—200, or however many there were. The publication by Mr Hancock says that these were all SIs under the Coronavirus Act, which is not true; they were under the public health Act 1984, if memory serves. It went through the Cabinet Office with no one picking up that the reference was to the wrong law. This is reminiscent of the chaos among the police in applying the restrictions, their failure to distinguish between guidance and law, and the general outrage among the public at being told they could not do things that actually were not illegal. This did not help the reputation of and trust in the police.

I foresee similar echoes from the provisions of this Bill, of an outraged Middle England—or middle UK—where people find themselves adjacent to or in the vicinity of a prohibited place on Ministry of Defence land having had no reason to know about it. The Minister said he would try to consider putting up notices, but I do not think there has been any guarantee. So someone might not know that they were in the vicinity of a prohibited place that is defence land, committing an offence with potentially draconian penalties. This is inadequate as law. The Minister did say that there would be guidance, but there was guidance for the Covid regulations and that did not always solve the problems.

So, while I hear what the Minister says, I will want to return to some of the issues in this part of the Bill. The proposed law is sloppy. It could find innocent people either criminalised or dissuaded from taking their normal walk because they are not sure whether they are allowed in an area, and there could be a general chilling effect on people’s leisure activities. That said, and with the intention of having another look at all of this on Report, I beg leave to withdraw my amendment.

Amendment 23 withdrawn.

UK Asylum and Refugee Policy

Baroness Ludford Excerpts

Friday 9th December 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, this has been an excellent, very important and timely debate on the eve of Human Rights Day, as the noble Baroness, Lady Chakrabarti, pointed out. These Benches very much welcome this vital opportunity to reflect upon the impact of government asylum policy. The most reverend Primate the Archbishop of Canterbury is to be greatly congratulated on instigating the debate, and the number of speakers shows the volume of interest in this topic and is a tribute to him.

The most reverend Primate said, among many other things, that a compassionate asylum system

“does not mean open borders, but a disposition of generosity and a readiness to welcome those whose need is genuine and where we are able to meet that need”,

and that it

“has confidence to reject the shrill narratives that all who come to us for help should be treated as liars, scroungers or less than fully human.”

I agree very strongly with those words—and indeed his whole speech—and with his view and that of the Bishops collectively that the Government’s policy of shipping asylum seekers to Rwanda is “an immoral policy” that “shames Britain”.

The only thing I am not persuaded about, rather like the noble Baroness, Lady Berridge, is the wisdom of opening up the refugee convention for amendment. Even if I accept the point about new causes such as climate change, I fear that revising the convention could be a Pandora’s box and invite backsliding; the words of the noble Lord, Lord Green, put me on notice about that. I would also comment that trafficking is already an international crime under EU law, but the UK Government refused to take part in that directive—though, confusingly, I noticed that they revoked it recently anyway.

The right reverend Prelate the Bishop of Leicester, the noble Lord, Lord Sahota, and the noble Baroness, Lady Twycross, have all made important and valuable maiden speeches. The noble Baroness, Lady Twycross, rightly praised the community response to Afghan refugees, as well as recalling her own family’s diverse origins. I can relate to her fate of being too opinionated for the Civil Service—I lasted only 15 months, for the same reason. The noble Lord, Lord Sahota, recalled the impressive history of his family in both India and the UK, and

“the slings and arrows of racial discrimination”.

He deplored the limbo and exploitation into which asylum seekers sink, and the cost of this to society and the public purse as well as to individuals. The right reverend Prelate the Bishop of Leicester recalled how Leicester has thrived as a city of migration, as well as speaking of his own history. We are all, he says, pilgrims in a foreign land. My own mother was born in Dublin, which makes me a dual national, so I have a tinge of that.

The contribution of the noble Lord, Lord Dubs, on refugee issues is second to none. I congratulate him on his 90th birthday. He looks embarrassed at that, but he is a splendid colleague on the Joint Committee on Human Rights, though we are both about to be chucked off—by rotation only, I should add. The noble Baroness, Lady Nicholson, talked of the terrible plight of the Yazidis. Going back to the noble Lord, Lord Dubs, he said that our asylum policy tested who we are as a country, which I so agree with, and he recalled, of course, the Kindertransport. The noble Lord, Lord Cormack, spoke of the Huguenots.

However, government policy and the language around it seems to junk this heritage, displaying a growing politicisation playing to populist nationalism, a shirking of our share of global responsibility, and an utter failure to uphold international human rights and refugee law and set an example of international leadership and partnership, including through co-operation with our European neighbours. The noble Lord, Lord Hannay, spoke on those themes. As my noble friend Lady Hamwee noted, I am sorry that the noble Baroness, Lady Stowell, and others have conflated economic migration—which the Government have full control over but have allowed to increase—and flows of refugees.

The Government’s policy is one not of shelter but of deterrence, which the Nationality and Borders Act 2022 has entrenched in several ways that violate international human rights and asylum law. As the noble Lord, Lord Kerr, said, the incompetence compounds the cruelty. These measures punish and penalise people for seeking asylum by the only means that is available to them: usually a dangerous journey controlled by dangerous organised criminals. The noble Lord, Lord Griffiths, told us that only 13% of asylum seekers who go missing are ever found.

But all of this has not prevented the escalation in the rhetoric of the Home Secretary and her Immigration Minister, Robert Jenrick, who throw around terms like “threat”, “invasion” and “illegal” about largely vulnerable and frightened people seeking asylum. As others have said, the Home Secretary called them “invaders” barely 24 hours after a firebomb attack upon people seeking asylum detained at the Western Jet Foil site in Dover. I certainly agree with the noble Lord, Lord Kamall, on the need to change the language used around this issue.

This debate takes place days after the Home Secretary welcomed and apparently endorsed as “vital and necessary” a collection of proposals, including pulling out of the European Convention on Human Rights and the refugee convention and proposing indefinite detention for arrivals, put forward in a report for the Centre for Policy Studies by Nick Timothy, a former adviser to Theresa May. These reckless proposals elicited a public denunciation from UNHCR, saying that they were based on

“critical factual and legal errors”.

UNCHR pointed out, again, that

“there is no such thing as an ‘illegal asylum-seeker’.”

The noble Baroness, Lady Chakrabarti, also made this point.

A far better report than Nick Timothy’s came in October from the Oxford Refugee Studies Centre, the Refugee Council, the NGO Unbound and the noble Baroness, Lady Stroud, of the Legatum Institute, whose excellent speech I was delighted to listen to today. Of course, she did so much in the debates on the Nationality and Borders Bill to advocate for the right of asylum seekers to work, which is a win-win policy on every level, including self-respect, self-support and fairness to taxpayers. I think this is the answer to the noble Baroness, Lady Fox, who talked about people complaining about generosity to asylum seekers—they are not allowed to support themselves and give back. Such a policy would also help to address our acute shortage of labour, as well as providing one of the keys to successful integration—but the Government stubbornly refuse it and no doubt will again today. I very much look forward to the report of the commission chaired by the noble Lord, Lord Carlile, on integration.

The contrast between the two reports I have mentioned could not be greater: one is rooted in fear and dislike, the other on hope and opportunity. The second report, in which the noble Baroness, Lady Stroud, played a role, says:

“Refugee policy should be a strategic priority for the United Kingdom … it can and should be a source of national unity as it has in the past for Conservative and Labour-led governments”.


I am pleased to see that the Bill of Rights Bill—also known as the rights removal Bill—which seeks to destroy the Human Rights Act, has been “deprioritised” by the Prime Minister. But my pleasure is tempered by the fact that the apparent reason is to make more space for a Bill to overhaul the “broken” asylum system and combat the so-called channel boats crisis.

But the asylum system, which my noble friend Lady Hamwee called “exclusionary and unworkable”, is only broken because successive Conservative Home Secretaries have failed to get to grips with what ought to be a manageable administrative task of establishing, through a fair and efficient determination of claims, whether people are refugees, and sending back those who are not. We received 70,000 asylum applications in the year to September 2022—that is a fair number, but it is far fewer than France or Germany, and it should not overwhelm the Home Office.

Other noble Lords, including my noble friend Lord Roberts and the right reverend Prelate the Bishop of Durham, cited the backlog figures, so I do not need to repeat this sorry tale—but I note the dire effect that this has on physical and mental health. As the most reverend Primate said,

“Control has become cruelty. Staggering inefficiencies by successive Governments trap people in limbo … at incredible expense … in the system for years, unable to build a life or to contribute to our society.”


This is the worst of all possible worlds and such a waste.

However, rather than prioritising the clearing of that backlog, the complications, differential treatment and inadmissibility rules in the Nationality and Borders Act are likely to add further delays. What assessment has the Home Office made of the impact of the inadmissibility rules, which provide a new sort of red tape, on the prospect of reducing the backlog? As the most reverend Primate the Archbishop of York said, we have a dysfunctional asylum system that threatens our social cohesion.

I have a particular interest in family reunion because I steered the latest version of that Private Member’s Bill through the House recently, taking up the baton from my noble friend Lady Hamwee. The rules are far too restrictive; for instance, they do not allow even unmarried daughters who are 19 or in their early 20s from somewhere like Afghanistan to join their parents, siblings to be reunited or, in particular, children to sponsor family members, so those children have to remain alone, lonely and vulnerable. The right reverend Prelate the Bishop of Durham referred to this.

Child refugees are getting a raw deal all round, as the noble Lord, Lord Carlile, described. The Home Office placed nearly 3,300 children in hotels in the year to October 2022, with no lawful basis and outside the child welfare and protection systems of local authorities, meaning that opportunities to protect children from trafficking have been missed. Will the Minister set out the department’s plan to end the use of hotels, particularly for unaccompanied asylum-seeking children? As the right reverend Prelate the Bishop of Chelmsford highlighted, housing is an important feature of integration. The noble Earl, Lord Sandwich, noted the scandal of money being diverted from the aid budget to the Home Office.

The results of the Government’s failed deterrence policy have been disastrous for all parties except organised criminals, as the noble Lord, Lord Desai, pointed out. Smugglers, traffickers and other abusers are thriving because Governments, including, sadly, our present one, refuse or fail to take up their responsibilities to provide fair and efficient asylum systems. I say to the noble Baroness, Lady Fox, that an efficient system would, inter alia, identify and remove those who did not qualify. Expanding safe, regular and accessible pathways for refugees to travel to the UK—including through expanded family reunion and humanitarian visas, as the noble Lord, Lord Kerr, stressed; processing on French soil, probably, as the noble Lord, Lord Cormack, said; and greater resettlement, as the noble Lord, Lord McInnes, spoke of—would offer real alternatives to dangerous, irregular journeys.

The debate today has provided numerous ideas for the Government to improve our asylum system, instead of it being stuck in the disastrous state in which it currently resides.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Those considerations are being studied in the department and will feed into future policy on this issue.

Where an individual’s claim is unsuccessful, they would need to be removed to their country of citizenship or another destination where they would be accepted.

It was apparent that there was a tension between the suggestion of the most reverend Primate the Archbishop of York and the most reverend Primate the Archbishop of Canterbury on whether we should extend our Ukrainian policies to all nationalities. As the most reverend Primate the Archbishop of Canterbury rightly noted, it is of course not immoral to have a limit or restrictions on immigration. While we sympathise with the many individuals who are in difficult situations around the world, the United Kingdom simply cannot help everyone who may like to come to this country.

We have introduced the asylum transformation programme, which aims to bring the system back into balance and to modernise it. It focuses on increasing productivity by streamlining, simplifying and digitising processes to speed up asylum decision-making and increase efficiency and output. Since the programme was established in the summer of 2021, a number of positive steps have been taken. More decision-makers have been recruited, alongside steps to keep experienced staff in post.

We have also tested a range of initiatives aimed at reducing the time it takes to interview and decide asylum claims. Changes in recent trials have doubled the number of decisions made per week; we are looking to roll these initiatives out nationwide as a result. This is undoubtedly a significant task, but I assure the House that efforts to address the backlog and alleviate the current pressures will continue in earnest. I hope this assures my noble friend Lord McInnes that the changes we are making will fix the issues with the asylum decision-making process.

Many of those arriving in the UK claim to be children and do not have clear evidence, such as a passport, to back this up. Decision-making is very challenging, and the current process is very subjective and can be disputed in long and expensive legal proceedings. The United Kingdom typically receives more than 3,000 asylum claims from alleged unaccompanied asylum-seeking children per year. Many of those arriving in the UK who claim to be children do not have evidence. Between 2016 and September 2022 there were 7,357 asylum cases in which age was disputed. In the subsequent resolution, some half—3,696 individuals—were in fact found to be adults. If there is doubt whether a claimant is an adult or a child, they are referred to a local authority social services department for a careful, case law-compliant age assessment. They will be treated as a child until a decision on their age is made. I do not need to remind noble Lords that one of the consequences of an adult being treated as a child is that this has the potential to expose those in local authority care to risk.

Beyond our domestic reforms, we are working closely with our international partners to deter small boat arrivals and put an end to the practices of people smuggling and clandestine travel into the United Kingdom. I entirely agree with the comments from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who pointed out the nonsensical position that Albanians can prioritise themselves by crossing the channel in a small boat and, on that basis, effectively jump the queue. It is incumbent on us to prevent that sort of self-selection and queue jumping. The noble Baroness, Lady Prashar, and others overlook the basic fact that not all those who claim to be refugees are actually refugees. It is not immoral to point this out. As my noble friend Lord Robathan stated, we must be sensible and not naive about this.

While legal challenges are ongoing, we remain committed to delivering the migration and economic development partnership between the United Kingdom and Rwanda to address the shared international challenge of illegal migration and break the business model of the people-smuggling gangs. This policy does not subcontract or outsource our responsibilities to Rwanda. Instead, the United Kingdom and Rwanda working together will help make the immigration system fairer and ensure that people are safe to enjoy the new opportunities to develop. It is by reforming the asylum system and taking bold international action to address the global migration crisis that we can keep providing protection for those who need it through safe and legal routes.

I would like to respond to the assertions of the noble Lord, Lord Browne of Ladyton, on our assessment that found Rwanda to be

“a fundamentally safe and secure country with a track record of supporting asylum seekers.”—[Official Report, 14/6/22; col. 1518.]

This is set out in the relevant country policy and information notes available on GOV.UK. These assessments are kept under review and updated periodically to reflect any significant new issues or evidence. We regularly monitor and review the situation in Rwanda and are working closely with the Foreign, Commonwealth and Development Office.

Last month the United Kingdom and France signed a new agreement further to bolster our combined efforts to prevent dangerous channel crossings, including through strengthened operational co-operation and investment in cutting-edge surveillance technology. The UK remains committed to addressing illegal migration with France via our enduring relationship. We continue to engage with our French friends at all levels, political and operational, supporting the meeting of our shared strategic aims with the provision of technology and sharing of intelligence. France and other EU countries are safe countries and, like the UK, have asylum systems that provide protection to those who need it.

[Baroness Ludford (LD)]

I apologise for interrupting the Minister, but I did not do so earlier. He talks about safe countries, and earlier he said there is an obligation to claim asylum in the first safe country, but he will of course be aware that the UNHCR said that it is absolutely not the law. Indeed, if it were, the refugee convention would never have been signed because countries that neighbour conflict areas, which already take the bulk of refugees, would never have signed it.

[Lord Murray of Blidworth (Con)]

I hear what the noble Baroness says. I commend to her the excellent Policy Exchange paper From the Channel to Rwanda: Three Essays on the Morality of Asylum. On page 14 of that excellent paper, Professor Finnis reminds us that

“the Rwanda scheme does not sub-contract anything. The UK as a founding party to the Refugee Convention, did not undertake to receive or process or admit refugees. Its contractual undertaking and obligation is (a) to give certain rights and privileges to those refugees whom it has chosen to admit and given leave to stay, and (b) not to deport anyone to an unsafe country.”

National Security Bill

Baroness Ludford Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, this has been a most interesting debate, not least due to the contributions from our national security, defence and intelligence professionals—or the securocrats, as the noble Lord, Lord Ricketts, collectively named them. As the noble Baroness, Lady Jones of Moulsecoomb, said, we have heard from people who actually know what they are talking about in this debate—unlike people like me. However, I will plough on none the less.

I thought it rather a pity that nobody from the Conservative Benches, beside the Minister, felt motivated to speak in this debate, while there were five from the Opposition, five from the Liberal Democrats and no fewer than seven from the formidable Cross Benches.

It is clear that UK democracy is under systemic attack from various hostile foreign Governments, including from China and Russia. But, as my noble friend Lord Wallace of Saltaire said, it is absurd to ask us to debate the Bill without publishing the redacted sections of the ISC’s Russia report, which the committee recommended should be released. As the NGO Spotlight on Corruption said, the Bill does not address the hole in the regime for keeping foreign and tainted money out of politics.

The noble Lord, Lord Evans of Weardale, regretted the Government’s rejection of the recommendations from the Committee on Standards in Public Life on political funding. The Electoral Commission has repeated its call for parties and campaigners to be banned from accepting donations from companies that have not made enough money in the UK to fund them and to be required to carry out enhanced due diligence and risk assessments before donations are accepted. Can the Minister tell us why these recommendations are not in the Bill?

The Bill also unfortunately omits the Government’s promised reform of the Official Secrets Act 1989, as noted by the noble Lords, Lord Evans of Weardale and Lord West of Spithead. Perhaps the Minister could clarify whether the Government plan to add that to the Bill during its passage in this House?

The report from the Joint Committee on Human Rights, on which I sit, described this Bill as a

“welcome attempt to modernise espionage offences”,

but expressed many concerns about its human rights impacts, some of which I will mention and have been mentioned by others.

One of the main concerns about the Bill is the Government’s attempts to constrain both scrutiny and accountability, as my noble friend Lord Beith and other noble Lords have said. One of these attempts is the failure to incorporate protection for whistleblowers and journalists, as my noble friend Lady Kramer pointed out; the other is the proposal to grant immunity from prosecution for conduct said to be necessary for the functions of the intelligence agencies or Armed Forces.

A public interest defence for whistleblowers, such as journalists, security personnel or civil servants charged with unauthorised disclosure, is absolutely critical to a rewriting of espionage legislation. We on these Benches are severely disappointed that it has not been included in the Bill, despite the backing of the Law Commission. A statutory defence would act as an internal discipline on better government and better decisions. The run-up to the Iraq war and MI6’s co-operation in acts of torture and extraordinary rendition are examples that might have been prevented with a safeguard.

The NUJ, the BBC and others fear that the Bill poses a significant threat to public interest journalism and press freedom, through the chilling effect it will have on those who expose wrongdoing. Perhaps the Minister can be a bit more encouraging today than he was last Friday to my noble friend Lady Kramer’s Private Member’s Bill on protection for whistleblowers.

Of great concern is Clause 28—surely set to become another notoriously numbered clause from a Tory Government—which would grant immunity from prosecution for encouraging or assisting the commission of wrongdoing abroad by members of the intelligence agencies or the Armed Forces. The noble Lord, Lord West, reported that the ISC believes that Clause 28 is unacceptably broad. The noble Lord, Lord Carlile, backed the changes proposed by my noble friend Lord Marks, and the noble Lord, Lord Tyrie, warned of the experience of rendition, which has never been resolved.

A grant of criminal immunity goes to the heart of respect for justice, human rights and the rule of law. It would be outrageous for Ministers and officials to be granted immunity for actions such as ordering an unlawful targeted killing or providing assistance to torture, interrogation or a disappearance. It may thwart accountability for UK involvement in war-on-terror abuses and undermine the UK’s centuries-old legal prohibition on torture and related abuses. As the noble Baroness, Lady D’Souza, pointed out, it could also destroy the UK’s moral authority in condemning crimes such as the murder of Jamal Khashoggi by Saudi Arabia or international poisonings by the Russian Government.

I listened carefully to the noble Lord, Lord Ricketts, as always, but given the existing immunities under the Serious Crime Act 2007 where a person has acted reasonably, further protections for conduct that is not reasonable are surely invidious. Can the Minister give a credible explanation as to why immunity from criminal prosecution should be granted for unreasonable actions by the intelligence communities and the Armed Forces?

My noble friend Lord Wallace of Saltaire and others, such as the noble Lord, Lord Carlile, have robustly illustrated the huge flaws in the Government’s proposals for a foreign influence registration scheme in Part 3. It threatens to be a bureaucratic monster. Given the Home Office’s struggles with competence in administration, the mind boggles. At the same time, right-wing think tanks escape transparency over their funding from abroad.

The former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, who, as has been mentioned, is unavoidably prevented from being here today, has helpfully shared his thoughts with us in various Twitter threads. I am going to quote from a different one to the one that has already been quoted from. He warned that the requirement on all Governments and bodies from outside the UK to register “political influence operations” is broader than the Australian and US schemes relied on as precedents and “potentially onerous”. He also pointed out a possible loophole, whereby a large company could avoid registration by ensuring that any activities are conducted by a UK subsidiary. The noble Lord concluded:

“Since the registration requirement is not restricted to specified (hostile) govts, or to companies controlled by govts, or to activities relating to national security, I'm struggling to see what it is doing in a national security Bill … Is it not more in the nature of a lobbying requirement (but one applied, oddly, only to foreign entities?) If so, how does it relate to Lobbying Act 2014 &c?”


Perhaps the Minister will tell us.

“And what useful value is anticipated for it? The Govt’s Impact Assessment … is unspecific … The process of scrutiny requires us to probe this thoroughly so as to ensure that we are passing into law a useful defence mechanism rather than a bureaucratic nightmare.”


I have quoted the noble Lord’s Twitter thread at length, because I thoroughly agree with him.

There are many human rights and civil liberties concerns in Part 1 that I do not need to cover, because my noble friend Lord Marks covered them fully. In Part 2, although the measures are called “Prevention and Investigation Measures”, the investigation element appears extremely limited. These measures, which were not included in the Law Commission’s review, risk prejudicing the rights to a fair trial, to liberty and security, and to a private and family life. I am sure they will get the detailed scrutiny they deserve.

The provisions of Part 4 seeking to restrict both the award of damages to those who have been involved in terrorist activity and the grant of legal aid to those with a terrorism-related conviction raise significant human rights and other concerns. They would potentially enable the Government to evade paying damages for UK complicity in torture or other human rights violations. As the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, said:

“It … risks the impression that if the government is sued, it will have a special advantage in keeping hold of monies which is not available to other unsuccessful parties in civil proceedings.”


The question also arises when the Government have a conflict of interest here. However, the availability of damages enabled litigation to be brought by Guantanamo detainees and others who had been subjected to rendition and torture. This uncovered a pattern of unlawful behaviour by the security services and thus served an important constitutional, as well as political, purpose. The proposed restriction on the grant of civil legal aid impedes access to basic rights and legal protections. The current independent reviewer’s view is that it is

“a purely symbolic measure that breaks new ground in the treatment of terrorist offenders and may be counter-productive in matters such as housing, mental health and debt.”

I have a few concluding points. The Bill provides that courts may exclude the public from criminal trials for offences under this Bill. The principle of open justice is fundamental to the proper administration of justice and the right to a fair trial. Clause 36 would be improved if it provided that the public could be excluded only where this was necessary for the administration of justice, having regard to the risk to national security.

The Government need to substantially increase funding for the National Crime Agency—a repeated call from these Benches. It must also strengthen the independence and powers of the Intelligence and Security Committee, which my noble friend Lord Beith and the noble Lord, Lord Tyrie, have called for. The post of reviewer for PIMs should be widened to match more closely the Independent Reviewer of Terrorism Legislation role, to include the full ambit of this Bill.

Lastly, there are several concerns over the Bill relating to the Government’s intention to abolish the Human Rights Act under the Bill of Rights Bill—which I am still hoping might disappear—or even pull out of the European Convention on Human Rights. The Lord Chancellor and Secretary of State for Justice tells us firmly that that is not intended, but this week the Home Secretary, in endorsing a pamphlet by Nick Timothy on asylum, has indirectly called for pulling out of the ECHR. One example of the danger from the Bill of Rights Bill is that the compatibility of national security and official secrets legislation with human rights often relies on the ability of the court to read legislation as compatible with convention rights, so far as it is possible to do so, under Section 3 of the Human Rights Act 1998. The Bill of Rights Bill would abolish that requirement. Can the Minister explain how the Government would then address incompatibilities in national security legislation with human rights?

Although we on these Benches support the Bill overall, it is a curate’s egg, displaying a lack of joined-up thinking. Significant parts of it must be altered both to improve our national security infrastructure and to protect our democratic processes and civic life.

Manston Update

Baroness Ludford Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

I agree with the noble Baroness that the reason these problems arose was the speed with which people were crossing the Channel illegally: that gave rise to the condition. The noble Baroness may shake her head, but the reality is that, if these people were not crossing the Channel illegally, the situation would not have occurred.

[Baroness Ludford (LD)]

My Lords, I share the surprise of the noble Baronesses, Lady Chakrabarti and Lady Jones of Moulsecoomb, that the Government are trying somehow to claim credit for rapidly emptying Manston. The fact is that it has been a story of incompetence and chaos, followed by panic. However, I particularly want to ask about staff in the hotels that the asylum seekers are living in. I have seen assurances from the Government in the press that it is not a problem for the wider community because most British residents are vaccinated. But I have also seen a concern expressed about eastern European staff in some of those hotels who apparently—I am relying on press reports—were not routinely vaccinated in their home countries against diphtheria. Is this something that the Government are paying attention to, because although we talk about “isolation hotels”, there will be some staff contact and, if it is an airborne disease, those staff could be at risk?

[Lord Murray of Blidworth (Con)]

I entirely get the sense of the noble Baroness’s question. The accommodation, as I say, is run by three contractors on behalf of the Home Office and I would sincerely hope that they are aware of their obligations to their staff to ensure that this is the case. I do not know the precise figures, and I can write to the noble Baroness about that.

Net Migration

Baroness Ludford Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

It may assist my noble friend if I remind the Chamber that work visas are 82% higher than they were in 2019 and that this is in part driven by an increase in health and care visas, which make up 50% of all skilled worker visas issued. Family-related visas are 31% lower than in 2019. It is clear that there is a need for more people in the health and care sector, and visas are awarded in relation to that. That is the reason for these exceptional figures. Again, I point to the fact that the figures this year reflect the problems of coming out of the pandemic and the international conflict that we have had to deal with.

[Baroness Ludford (LD)]

My Lords, have I got this right? The Government insist on including students in the immigration statistics. Students form one-third of people coming into the country, thereby artificially inflating the migration numbers. The Government’s reaction is to seek to ban students, harming the higher education sector and the economy. Can they really not think of a better way to manage this, starting by excluding students from the immigration statistics?

[Lord Murray of Blidworth (Con)]

I reassure the noble Baroness that the Government have no plans to ban students.

Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Baroness Ludford Excerpts

Monday 28th November 2022 Grand Committee

[Baroness Ludford (LD)]

My Lords, this report produced by the committee chaired by my much-praised noble friend Lady Hamwee is both powerful and shocking. It does not mince its words. I will be quoting from it, as I cannot improve on its wording. The report is not before time—indeed, it is overdue. One can only wonder that successive Governments have neglected to introduce the reforms and protections that this report so convincingly explains are essential to protect us from breaches of equality, human rights and data protection safeguards.

The committee is a remarkably strong one, including as it does a former Home Secretary, the noble Lord, Lord Blunkett; a former National Security Adviser, the noble Lord, Lord Ricketts; a former director of Liberty, the noble Baroness, Lady Chakrabarti; and several very senior lawyers. The report says that the committee was

“taken aback by the proliferation of Artificial Intelligence tools potentially being used without proper oversight, particularly by police forces across the country.”

It warns that,

“without sufficient safeguards, supervision, and caution, advanced technologies may have a chilling effect on a range of human rights, undermine the fairness of trials, weaken the rule of law, further exacerbate existing inequalities, and fail to produce the promised effectiveness and efficiency gains.”

That is a stunning catalogue of dangers.

The report explains how public bodies and all 43 police forces are free to individually commission whatever tools they like or buy them from companies

“eager to get in on the burgeoning AI market”.

The committee found this

“particularly concerning in light of evidence we heard of dubious selling practices and claims made by vendors as to their products’ effectiveness which are often untested and unproven.”

No wonder that the committee reports that it

“uncovered a landscape, a new Wild West, in which new technologies are developing at a pace that public awareness, government and legislation have not kept up with.”

It refers to the phenomenon of “digital excitement”—one could say the delight in boys’ toys, if that were not sexist—felt by some who get their hands on a new technology product. That is of course not a good rationale for purchase. It is hardly surprising that my noble friend Lady Hamwee, in her letter to the Home Secretary, said that the committee was “disheartened” by the Home Office’s response to its “constructive conclusions and recommendations”, saying it found the Home Secretary—I think my noble friend Lady Hamwee quoted this—

“more satisfied with the current position than is consonant with the evidence”

that the committee had received. That is quite a strong message.

My noble friend Lady Hamwee said with considerable feeling that the committee

“hoped that when the House debates the report, the Minister will be able to explore with us in more depth the points that we raised, and not simply be briefed to repeat the formal response”.

We very much look forward to that more realistic response today. The Government’s response was disappointing and complacent, and failed to do justice to the quality of the evidence, the report and the committee. The Government

“was not persuaded that a new independent national body and certification system should be created. It said whilst certification worked in some contexts, it could also create false confidence and be costly. It disagreed with the idea of making transparency a statutory principle. It said … making transparency a legal duty could limit the police’s current transparency efforts to whatever would be set out in statute.”

Also, the Government said that

“it could not make the police and the judiciary undertake training on ‘meaningful interaction with technologies’. This was because training was the responsibility of the College of Policing and Judicial College, rather than the government.”

However, as the noble Baroness, Lady Sanderson of Welton, said, we oblige drivers to have a licence as well as for the car to have an MOT. The Government

“disagreed that there should be statutory ethics groups created to scrutinise the use of technologies and veto deployment … because they would not be democratically elected.”

These all seem remarkably weak points. An alternative term would be “scraping the barrel”.

The committee said that:

“While we found much enthusiasm about the potential of advanced technologies… we did not detect a corresponding commitment to any thorough evaluation of their efficacy … there are no minimum scientific or ethical standards that an AI tool must meet before it can be used in the criminal justice sphere. Most public bodies lack the expertise and resources to carry out evaluations … we risk deploying technologies which could be unreliable, disproportionate, or simply unsuitable for the task in hand.”


Are the Government happy with that situation?

The committee found the institutional landscape confused and duplicative—no wonder, with at least 30 organisations, initiatives and programmes having some input or other—and found governance arrangements complex and disconnected, while the Government are appointing still more bodies which make the picture even more crowded. The committee said:

“We have heard no evidence that the Government has taken a cross-departmental strategic approach to the use of new technologies in the application of the law … Thorough review across Departments is urgently required.”


Can the Minister tell us that that at least will happen? The report mentions that a government White Paper is supposedly in the pipeline. Can the Minister tell us the envisaged date for that?

The report has a number of important proposals on governance, oversight and evaluation to address these various deficits. One very sensible proposal is a new national body to set scientific and quality standards and certify new products against those standards. The committee recommends “evaluate centrally, procure locally”.

The committee says its

“evidence reflected organisational confusion about what guidance, regulation and legislation applied”

and argues persuasively for a strong legal framework to remedy the fact that

“users are in effect making it up as they go along.”

No wonder it uses the term “Wild West”.

The report refers to the EU artificial intelligence regulation, or “AI Act”, that is in preparation—I am not sure where it has got to—and notes that it would ban systems that pose an “unacceptable risk’”, such as social scoring and many deployments of facial recognition. I hope the Government are still willing to learn from the EU.

The committee suggests legislation to set principles, supplemented by regulations to govern the use of specific technologies. If the Government object that there is a lack of parliamentary time, I suggest at least three Bills that could and should be dropped to make space: the Northern Ireland Protocol Bill, the revocation of EU law Bill and the Bill of Rights Bill, otherwise known as the Human Rights Act destruction Bill.

The committee found the market “worryingly opaque”, with buyers often pretty ignorant about the systems that they were buying due to companies’ insistence on commercial confidentiality. It found some “dubious selling practices” and untested, unproven claims about effectiveness of the products.

The committee therefore makes a number of important proposals for increased transparency and explainability, including consultations and published impact assessments. The committee reports that there is no central register, making it virtually impossible to find out where and how these systems are being used such that parliamentarians, the media, academics and those subject to them could scrutinise and challenge them. The committee rightly called for a mandatory register.

The Government published their consultation paper Data: A New Direction just over a year ago, promising

“a bold new data regime”,

a phrase that makes me wary. I am concerned about prejudice to our data adequacy decision from the European Commission but also worried if it makes the Government less vigilant about data protection and privacy issues.

The committee said it sees

“serious risks that an individual’s right to a fair trial could be undermined by algorithmically manipulated evidence”,

with defendants and indeed courts ignorant of what technologies might have been used in their case. That is a pretty dire state of affairs.

The report raises serious concerns that bias in data collection could lead to discriminatory policing, especially in predictive policing. It is well-known, as my noble friend Lord Clement-Jones pointed out, that facial recognition technology is not sound when used on female and ethnic minority subjects because the learning algorithms have leaned more on data from white men than from other groups. The committee also warned of the danger of overpolicing through the use of predictive tools, which could become a vicious circle of concentration on poorer people in more disadvantaged areas.

The committee is highly concerned at the lack of accountability for the misuse or failure of these AI technologies and hence the lack of recourse for people who might suffer from their use. It suggests that the Government appoint a taskforce to produce guidance on consistent lines of accountability.

This is a first-class and hugely valuable report. The Government’s complacency—I could say blinkered complacency—is profoundly unwise when defects and unfairness in the deployment of AI systems could create a backlash through a loss of trust or become, in the words quoted by the noble Baroness, Lady Sanderson of Welton, “another frontier of failure.”

The glittering prize for the UK is, in the words of the report, to be

“a frontrunner in the global race for AI while respecting human rights and the rule of law.”

I hope we hear a better response than we had in June and concrete plans now from the Minister.

Public Order Bill

Baroness Ludford Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, my noble friend Lord Paddick said in November last year when broadly similar powers were introduced into the police Bill:

“With the greatest respect to the Government, this is yet another example of ‘What wizard ideas can we think up in line with the Home Secretary telling the Tory party conference she was going to get tough on protesters?’”—[Official Report, 24/11/21; col. 982.]


Here we are with a sense of déjà vu, again.

We have had a very interesting and useful debate this evening, with almost no unqualified support for the Bill. In a debate on this Bill in the other place, the Conservative MP Sir Charles Walker called the proposed serious disruption prevention orders

“absolutely appalling because there are plenty of existing laws that can be utilised to deal with people who specialise in making other people’s lives miserable.”

Sir Charles went on to read out a list of public order laws that already exist to tackle disruptive protests. This list bears repeating:

“obstructing a police officer, Police Act 1996; obstructing a highway, Highways Act 1980; obstruction of an engine, Malicious Damage Act 1861 … endangering road users, Road Traffic Act 1988; aggravated trespass, Criminal Justice and Public Order Act 1994; criminal damage, Criminal Damage Act 1971 … public nuisance, the Police, Crime, Sentencing and Courts Act 2022”

and

“the Public Order Act 1986 that allows police officers to ban or place conditions on protest.”—[Official Report, Commons, 18/10/22; col. 580.]

The noble Earl, Lord Lytton, sensibly suggested a degree of consolidation to provide clarity and assessment of the existing laws. That seems a wise idea.

My friend in the other place, Wendy Chamberlain MP, a former police officer, said on Report that

“the police do not need this Bill to respond when protests cross the line.”

She also noted:

“Policing by consent is one of the greatest attributes of our country, and it is something that I am passionate about. The Bill undermines that.”—[Official Report, Commons, 18/10/22; cols. 590-92.]


So when the Minister says that the Bill gives the police the tools they need, which I think he said in his opening speech, we on these Benches do not agree. We certainly do not need these broad, unclear, illiberal measures. My noble friend Lady Hamwee said how precious our freedoms are and the noble Baroness, Lady Bennett of Manor Castle, said that protest is not a crime.

I am not saying that all those we have witnessed protesting in recent years, months and days are angels. Those who obstruct an ambulance or commit criminal damage do the protest cause no favours and should, if appropriate, be arrested and prosecuted. The noble Baroness, Lady Jones of Moulsecoomb, referred to the tomato soup on the Van Gogh painting. When I saw that, I did not know the painting was covered by glass and I do not know whether the protesters knew it was covered by glass.

[Baroness Jones of Moulsecoomb (GP)]

They did.

[Baroness Ludford (LD)]

Okay, that is fair enough, but what I did not like was the tweet from Just Stop Oil saying, in effect—I cannot remember the exact words—who cares about art when the planet is in danger? That struck a very harsh note with me; many of us do care about art. What I support are peaceful protests which avoid both violence and deliberate damage.

The noble Viscount, Lord Hailsham, made a powerful speech, but I am afraid it failed to convince me that the existing powers are inadequate. I normally agree to a very large degree with the noble Viscount, but not really on this occasion. As my noble friend Lord Beith said in last November’s debate on the police Bill:

“It seems to me that political considerations have taken precedence over all considerations relating to making good law and, indeed, policing protest satisfactorily and effectively.”—[Official Report, 24/11/21; col. 985.]


He wisely warned both then, and again today, against getting into trouble by trying to turn into general law attempts to deal with very specific cases. The noble Lord, Lord Frost, and the noble and learned Lord, Lord Hope of Craighead, made similar warnings that next time it will be some other inventive method and we will have to legislate for that.

The noble Lord, Lord Blair of Boughton, said that climate protesters risked damaging their cause, and I have felt that on various occasions recently. Indeed, it is so but that is a public relations matter, not a criminal issue. I hope that will make some of them reflect on the value of what they are doing. If they are alienating some of their potential audience, the message is not effective.

Getting the Balance Right?, the March 2021 inspection report from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on how effectively the police deal with protest, which has already been referred to, not least by my noble friend, wisely said that

“legislative reform will not be a panacea for the problem of disruptive protest”.

My noble friend Lord Paddick explained how HMIC had rejected many of the proposals now in the Bill. In fact, as in so much of what the Home Office supervises, the challenge is not so much new laws but sufficient, well-trained operational capacity. Perhaps that will be a theme of what was to be the dinner break business on asylum processing. HMIC also called for

“a greater understanding of human rights law among the police”.

That might have come in useful during the anti-monarchist protests in the run-up to the Queen’s funeral, when there was a heavy-handed response at times. Certainly, some were in very bad taste but whether they were a breach of the law is another matter entirely.

The HMIC report emphasises the value of working with protest organisers, commenting that most collaborate with the police to make sure that protests are safe. It notes:

“Courts have repeatedly emphasised that a degree of temporary interference with the rights of others is acceptable in order to uphold freedoms of expression and assembly”.


The police are ahead of the Government here. HMIC reported on the value of police liaison team officers in reaching agreement on an acceptable level of disruption. This should not be underrated.

In regard to the expansion of stop and search, including without suspicion, the Home Office itself acknowledges in its equality impact assessment on the Bill that the expansion of stop and search

“would risk having a negative effect on a part of the community where trust and confidence levels are relatively low.”

We know that this is talking about young people and especially young black men. That is a very serious matter if it is going to create a more negative relationship with the police.

The noble Lord, Lord Anderson of Ipswich, applauded the JCHR’s suggestion that serious disruption be defined and I think the noble Lord, Lord Hogan-Howe, agreed with him. The noble Lord, Lord Anderson, also wanted careful examination of the proposed reversal of the burden of proof requiring the defendant to show that they had a reasonable excuse for, for instance, locking on. This seems in strange contrast to an offence such as obstruction of the highway, where it is for the prosecution to prove that the defendant did not have lawful authority or excuse for their actions. Perhaps the Minister could explain this reversal of proof.

The noble Baroness, Lady Chakrabarti, my noble friend Lord Beith, the noble Lords, Lord Balfe and Lord Sandhurst, and others warned particularly against politicising policing through government injunctions under, I think, Clause 20. That was a particular concern that ran throughout the debate.

The Minister said in his opening remarks that serious disruption prevention orders have an appropriately high threshold. Other speakers, such as the right reverend Prelate the Bishop of St Albans, did not agree that the balance of probabilities was an appropriately high threshold. Some obstructive activity has to be tolerated in a free society. In its report on the Bill, the Joint Committee on Human Rights recalled:

“The European Court of Human Rights has recognised that public demonstrations ‘may cause some disruption to ordinary life’ but that ‘it is important to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed in Article 11 of the Convention is not to be deprived of its substance.”


The Government have provided no compelling justification for the introduction of the new expansive powers in the Bill, criminalising ordinary, peaceful, if disruptive, behaviour. The JCHR also stresses—it has been another theme in this debate—that:

“The UK is rightly proud of its history of respect for political protest and is critical of other nations who fail to show the same degree of respect for the crucial importance played by protest in a democratic society. Introducing our own oppressive measures could damage the UK’s international standing and our credibility when criticising other nations for cracking down on peaceful protest.”


The noble Lord, Lord Foulkes, pithily summed this up as “authoritarian creep” and the noble Lord, Lord Balfe, reminded us that sometimes protest tactics that make us uncomfortable change opinion and get the law changed. I hope the new Government will show concern about their international image and reputation and be persuaded that the Bill is unnecessary and unjustified. As the right reverend Prelate the Bishop of St Albans said, we need evidence of how this Bill can succeed when its predecessors have self-evidently failed if the Government want this new Bill.